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[DOC.  No.  17.] 


* 


'  JUDGMENT 


GENERAL 

OF  THE 

« 

COURT  OF  VIRGINIA, 

IN  THE  CASE  OF  THE 

COMMONWEALTH  v.  PETER  GARNER  AND  OTHERS 

ADJOURNED  FROM  THE  CIRCUIT  COURT  OF  WOOD  COUNTY: 

ALSO,  A  COPY  OF  THE 

OPINIONS  OF  THE  JUDGES, 

SO  FAR  AS  THEY  ARE  ON  FILE  IN  SAID  CAUSE. 


RICHMOND : 

PRINTED  BY  SAMUEL  SHEPHERD 
Printer  to  the  Commonwealth. 


181?, 


[Doc.  No.  17.] 


Richmond,  December  31,  1846. 

Sir, 

In  obedience  to  a  resolution  adopted  by  the  house  of  delegates  on  the 
18th  instant,  requiring  the  clerk  of  the  general  court  to  furnish  that  house  “  with 
a  copy  of  the  judgment  of  said  court  in  the  case  of  The  Commonwealth  against 
Peter  Garner  and  others,  adjourned  from  the  circuit  court  of  Wood  county — 
also  a  copy  of  the  opinions  of  the  judges,  so  far  as  they  are  on  file  in  said  cause,” 
I  have  the  honour  to  enclose  copies  of  the  said  judgment  and  opinions. 

As  the  judgment  refers  to  “the  facts  found,”  which  are  contained  in  the  record 
transmitted  to  the  general  court  from  the  circuit  court  of  Wood  county,  a  copy 
of  that  record  (though  not  called  for  by  the  literal  terms  of  the  resolution)  has 
been  deemed  a  proper  accompaniment  of  the  other  copies,  and  is  accordingly 
prefixed  to  them. 

Very  respectfully, 


To  the  Speaker  of  the 

House  of  Delegates  of  Virginia. 


N.  P.  HOWARD, 
Clerk  of  the  General  Court. 


[Doc.  No.  17.] 


JUDGMENT,  &c. 


Virginia,  to  wit: 

Be  it  remembered  that  at  a  circuit  superior  court  of  law  and  chan¬ 
cery  held  for  Wood  county  at  the  courthouse  thereof  on  the  first  day 
of  September  in  the  year  eighteen  hundred  and  forty-five,  before  David 
M’Comas,  Esq.,  a  judge  of  the  general  court  and  judge  of  the  circuit 
superior  court  of  law  and  chancery  of  the  nineteenth  circuit  of  the 
tenth  judicial  district,  George  W.  Henderson  foreman,  John  Pugh, 
Alexander  H.  Creel,  Abel  James,  William  F.  Coffer,  George  V.  Lewis, 
Oliver  P.  Lewis,  Francis  M.  Keene,  Janies  Fisher,  William  Foughty, 
Henry  Steed,  John  Barnett,  jr.,  Johnathan  B.  Beckwith,  George  Neale, 
jr.,  Thomas  Creel,  James  D.  Woodyard,  Cincinnatus  J.  Neal,  James 
Wood  and  Daniel  Wilkinson  were  sworn  as  a  grand  jury  of  inquest  for 
the  body  of  this  county,  and  having  received  their  charge  withdrew, 
and  after  some  time  returned  into  court  and  presented  “  an  indictment 
against  Peter  M.  Garner,  Mordecai  Thomas  and  Crayton  J.  Loraine  for 
felony,  a  true  bill which  indictment  is  in  the  words  following,  to  wit : 

“  Virginia,  Wood  county,  to  wit :  The  grand  jurors  for  the  common¬ 
wealth  of  Virginia  and  for  the  body  of  the  county  of  Wood,  upon  their 
oaths  present  that  Peter  M.  Garner,  Mordecai  Thomas  and  Crayton  J. 
Loraine,  free  white  persons,  late  of  the  county  of  Wood,  on  the  ninth 
day  of  July  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
forty-five,  with  force  and  arms,  at  the  county  of  Wood  aforesaid  and 
within  the  jurisdiction  of  the  circuit  superior  court  of  lav/  and  chan¬ 
cery  for  said  county  of  Wood,  did  feloniously  entice,  advise  and  per¬ 
suade  six  certain  negroes,  slaves,  the  property  of  John  H.  Harwood  of 
said  county,  the  said  slaves  then  and  there  being  in  the  possession  and 
service  of  the  said  John  H.  Harwood,  to  abscond  from  the  possession 
and  service  of  the  said  John  H.  Harwood,  and  without  the  knowledge 
and  consent  of  said  John  H.  Harwood,  against  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace  and  dignity  of 
the  commonwealth. 

“  And  the  jurors  aforesaid  on  their  oaths  aforesaid  do  further  present 
that  Peter  M.  Garner,  Mordecai  Thomas  and  Crayton  J.  Loraine,  free 
white  persons,  late  of  said  county,  on  the  ninth  day  of  July  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  forty-five,  with  force  and 
arms,  at  the  county  of  Wood  aforesaid  and  within  the  jurisdiction  of 
the  circuit  superior  court  of  law  and  chancery  for  said  county  of  Wood, 
did  feloniously  carry  and  cause  to  be  carried  out  of  this  commonwealth 
to  the  state  of  Ohio  six  negro  slaves  the  property  of  John  H.  Har¬ 
wood,  without  the  consent  of  the  said  John  H.  Harwood  the  owner  of 
said  slaves,  with  intention  in  so  doing  to  defraud  the  said  John  H.  Har- 


4 


[Doc.  No.  17.  ] 

wood,  and  to  deprive  the  said  John  H.  Harwood  the  owner  of  said 
slaves  of  the  use,  enjoyment,  property  and  possession  of  said  slaves, 
against  the  form  of  the  statute  in  such  case  made  and  provided,  against 
the  peace  and  dignity  of  the  commonwealth. 

“  And  the  jurors  aforesaid  on  their  oaths  aforesaid  do  further  present 
that  Peter  M.  Garner,  Mordecai  Thomas  and  Crayton  J.  Loraine,  late 
of  the  county  of  Wood,  being  persons  travelling  by  land,  did  on  the 
ninth  day  of  July  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  forty-five,  with  force  and  arms,  at  the  county  of  Wood  aforesaid 
and  within  the  jurisdiction  of  the  circuit  superior  court  of  law  and 
chancery  for  said  county,  did  feloniously  give  countenance,  protection 
and  assistance  to  six  negro  slaves  the  property  of  John  H.  Harwood, 
then  being  carried  away  and  absconding  from  their  owner,  for  the  pur¬ 
pose  of  preventing  the  said  six  negro  slaves  the  property  of  John  H. 
Harwood  from  being  stopped  and  apprehended,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  commonwealth.” 

“  A  true  bill. 

George  W.  Henderson ,  foreman.” 

And  thereupon  the  said  Peter  M.  Garner,  Mordecai  Thomas  and 
Crayton  J.  Loraine  being  brought  into  court  were  set  to  the  bar  in  the 
custody  of  the  jailor,  arraigned  upon  said  indictment,  and  pleaded  seve¬ 
rally  not  guilty.  But  the  health  of  John  J.  Jackson,  who  prosecutes 
for  the  commonwealth  in  this  court,  being  such  as  neither  in  reference 
to  his  own  safety  nor  the  interests  of  the  commonwealth  to  permit  him 
to  proceed  in  the  trial  of  the  prisoners,  the  same  is  continued  until  an 
intermediate  term  of  this  court  to  be  held  for  this  county  on  the  17th 
day  of  November  next.  And  the  court  is  of  opinion,  and  doth  so  order 
and  direct,  that  the  prisoners  be  released  from  their  imprisonment  upon 
each  of  them  entering  into  a  recognizance  with  one  or  more  good  se¬ 
curities  in  the  sum  of  five  hundred  dollars,  and  their  said  securities  in 
a  like  sum  conditioned  for  their  personal  appearance  here  on  the  said 
17th  day  of  November  next,  to  answer  to  said  indictment  and  not  de¬ 
part  the  court  without  leave.  And  such  security  not  being  given,  the 
prisoners  were  remanded  to  prison. 

And  afterwards,  to  wit.  at  a  circuit  superior  court  of  law  and  chan¬ 
cery  held  for  said  county  at  the  courthouse  thereof,  pursuant  to  adjourn¬ 
ment,  on  the  17th  day  of  November  in  the  year  1845,  before  the  same 
judge  aforesaid,  the  said  Peter  M.  Garner,  Mordecai  Thomas  and  Cray¬ 
ton  J.  Loraine  who  stand  indicted  for  felony  were  brought  into  court 
and  set  to  the  bar  in  the  custody  of  the  jailor.  And  thereupon  the 
attorney  who  prosecutes  for  the  commonwealth  in  this  court  having 
declared  his  wish  to  proceed  against  the  prisoners  separately  upon  the 
indictment,  and  the  court  assenting  thereto,  Mordecai  Thomas  and 
Crayton  J.  Loraine  were  remanded  to  prison,  and  Peter  M.  Garner  put 
upon  his  trial.  And  after  six  of  the  jury  were  elected  and  sworn,  the 
court  took  a  recess  for  refreshment  for  one  hour,  and  the  jury,  so  far  as 
impannelled,  by  consent  of  the  prisoner  were  committed  to  the  custody 
of  James  Cook  and  Henry  H.  Dils  deputy  sheriffs  of  this  county,  who 


5 


[  Doc.  No.  17.  ] 

are  directed  to  keep  them  together  without  communication  with  any 
other  person,  and  to  cause  them  to  appear  here  at  the  expiration  of  one 
hour  as  aforesaid ;  whereupon  an  oath  was  administered  to  the  said 
deputy  sheriffs  to  the  following  effect :  “  You  shall  well  and  truly,  to 
the  best  of  your  ability,  keep  this  jury,  and  neither  speak  to  them 
yourselves  nor  suffer  any  other  person  to  speak  to  them  touching  any 
matter  relative  to  this  trial,  until  they  return  into  court.”  And  there¬ 
upon  the  prisoner  was  remanded  to  prison. 

At  the  expiration  of  the  time  aforesaid  the  prisoner  was  again  brought 
into  court  and  set  to  the  bar  in  the  custody  of  the  jailor,  and  the  jury, 
so  far  as  elected  and  sworn  and  committed  to  the  custody  of  the  deputy 
sheriffs  aforesaid,  were  brought  into  court.  And  then  came  a  jury,  to 
wit,  Hiram  Prebble,  George  Waggle,  John  L.  Crawford,  Henry  Lower, 
Joshua  Riley,  Henry  Syphord,  Benja.  Cooper,  Phillip  Waggle,  jr. , 
Tarlton  Brown,  Thomas  B.  Leach,  Nathaniel  Rice  and  James  Lyons, 
good  and  lawful  men,  who  were  elected,  tried  and  sworn  to  truth  to 
speak  of  and  upon  the  premises,  and  having  partly  heard  the  evidence, 
were  adjourned  over  until  eight  o’clock  to-morrow,  and  the  jury  by 
consent  of  the  prisoner  again  committed  to  the  custody  of  the  deputy 
sheriffs  aforesaid,  who  are  directed  to  keep  them  together  without  com¬ 
munication  with  any  other  person,  and  to  cause  them  to  appear  here 
to-morrow  at  eight  o’clock  ;  whereupon  an  oath  was  again  administered 
to  the  said  deputy  sheriffs  to  the  following  effect:  “You  shall  well 
and  truly,  to  the  best  of  your  ability,  keep  this  jury,  and  neither  speak 
to  them  yourselves  nor  suffer  any  other  to  speak  to  them  touching  any 
matter  relative  to  this  trial,  until  they  return  into  court.”  When  the 
prisoner  was  again  remanded  to  prison. 

And  on  another  day  of  the  same  court,  to  wit,  the  18th  day  of  No¬ 
vember  1845,  held  before  the  same  judge  for  the  county  aforesaid  at 
the  courthouse  thereof,  the  said  Peter  M.  Garner  was  again  brought  in¬ 
to  court  and  set  to  the  bar  in  the  custody  of  the  jailor,  and  the  same 
jury  committed  to  the  custody  of  the  deputy  sheriffs  as  aforesaid  were 
also  brought  into  court,  and  having  further  heard  the  evidence,  the 
court  took  a  recess  for  refreshment  for  one  hour,  when  the  jury  were 
again  committed  by  consent  of  the  prisoner  to  the  custody  of  James 
Cook  and  James  Dils,  deputy  sheriffs  of  this  county,  who  are  directed 
to  keep  them  together  without  communication  with  any  other  person, 
and  to  cause  them  to  appear  here  at  that  time ;  whereupon  an  oath 
was  administered  to  the  said  deputy  sheriffs  to  the  following  effect : 
“You  shall  well  and  truly,  to  the  best  of  your  ability,  keep  this  jury, 
and  neither  speak  to  them  yourselves  nor  suffer  any  other  person  to 
speak  to  them  touching  any  matter  relative  to  this  trial,  until  they  re¬ 
turn  into  court.”  And  thereupon  the  prisoner  was  remanded  to  prison. 

At  the  expiration  of  the  time  aforesaid  the  prisoner  was  again  set  to 
the  bar  in  the  custody  of  the  jailor,  and  the  jury  committed  to  the  cus¬ 
tody  of  the  deputy  sheriffs  aforesaid  were  also  brought  into  court,  and 
having  further  heard  the  evidence,  were  adjourned  over  to  eight  o’clock 
to-morrow  by  consent  of  the  prisoner,  and  committed  to  the  custody 
of  James  Cook  and  James  A.  Foley  deputy  sheriffs  of  this  county, 
who  are  directed  to  keep  them  together  without  communication  with 


6 


[Doc.  No.  17.] 

any  other  person,  and  cause  them  to  appear  here  to-morrow  at  eight 
o’clock ;  whereupon  an  oath  was  administered  to  the  said  deputy 
sheriffs  to  the  following  effect:  “You  shall  well  and  truly,  to  the  best 
of  your  ability,  keep  this  jury,  and  neither  speak  to  them  yourselves 
nor  suffer  any  other  person  to  speak  to  them  touching  any  matter  rela¬ 
tive  to  this  trial,  until  they  shall  return  into  court.”  And  the  prisoner 
was  again  remanded  to  prison. 

Memo.  Upon  the  trial  of  this  cause  a  bill  of  exceptions  was 
tendered  by  the  prisoner’s  counsel,  signed  by  the  judge,  and  made  a 
part  of  the  record,  and  is  in  these  words  and  figures  following  to  wit: 
“  The  prisoners,  being  jointly  indicted,  moved  the  court  to  permit  them 
to  be  tried  jointly  by  the  same  jury,  offering  to  waive  every  right  they 
had  incompatible  with  a  joint  trial.  The  attorney  for  the  common¬ 
wealth  agreed  that  they  might  have  such  a  trial,  provided  they  would 
waive  the  right  to  peremptorily  challenging  more  than  twenty  jurors, 
being  the  number  to  which  each  one  would  be  entitled  on  a  separate 
trial ;  which  waiver  the  prisoners  were  unwilling  to  make,  and  there¬ 
upon  the  attorney  for  the  commonwealth  objected  to  trying  them  jointly. 
The  question  being  submitted  to  the  court,  the  court  was  of  opinion 
that  the  question  as  to  the  right  of  a  joint  trial  was  addressed  to  the 
sound  discretion  of  the  court ;  and  being  of  opinion  that  much  incon¬ 
venience  and  perhaps  injustice  would  result  from  permitting  sixty  per¬ 
emptory  challenges  in  making  up  one  jury,  decided  that  the  prisoners 
should  be  tried  separately.  The  court  was  satisfied  that  although  such 
challenges  were  ostensibly  made  by  the  prisoners,  yet  they  were  in 
fact  made  by  the  counsel,  and  that  therefore  a  joint  trial,  by  which 
they  would  have  the  right  of  making  sixty  challenges,  would  in  effect  be 
equal  to  giving  each  one  of  them  sixty  challenges.  The  court  was  also 
of  opinion  that  it  would  be  improper  to  deprive  the  prisoners  of  any 
right,  and  particularly  the  right  of  challenge.  The  court  further  de¬ 
cided  that  the  commonwealth  had  as  much  right  to  object  to  a  joint 
trial  as  the  prisoners  had  to  ask  it,  and  that  the  court,  in  exercising  its 
discretion,  should  decide  between  them.  After  having  decided  that 
the  trial  should  be  separate,  the  court  permitted  the  attorney  for  the 
commonwealth  to  elect  which  of  the  prisoners  he  would  try  first.  To 
which  opinion  of  the  court  overruling  the  motion  of  the  prisoners  and 
directing  them  to  be  tried  separately,  the  said  prisoners  except;  and 
their  exceptions  are  signed,  sealed,  enrolled  and  made  a  part  of  the 
record. 

“  David  M’Comas ,  [Seal.]” 

And  on  another  day  of  the  same  court,  to  wit,  at  a  circuit  superior 
court  of  law  and  chancery  held  for  said  county  at  the  courthouse  there¬ 
of  before  the  same  judge  aforesaid  on  the  19th  day  of  November  1S45, 
the  said  Peter  M.  Garner  was  again  brought  into  court  and  set  to  the 
bar  in  custody  of  the  jailor,  and  the  jury  sworn  and  impannelled  to  try 
this  cause  and  committed  to  the  custody  of  the  deputy  sheriffs  afore¬ 
said  were  also  brought  into  court,  and  having  fully  heard  the  evidence, 
the  court  took  a  recess  until  one  o’clock,  when  by  consent  of  the 
prisoner  the  jury  were  again  committed  to  the  custody  of  James  Cook 


[Doc.  No.  17.]  7 

and  Henry  H.  Dils  deputy  sheriffs  of  this  county,  who  were  directed 
to  keep  them  together  without  communication  with  any  other  person, 
and  to  cause  them  to  appear  here  at  one  o’clock  as  aforesaid ;  where¬ 
upon  an  oath  was  administered  to  the  said  deputy  sheriffs  to  the  fol¬ 
lowing  effect:  “You  shall  well  and  truly,  to  the  best  of  your  ability, 
keep  this  jury,  and  neither  speak  to  them  yourselves  nor  suffer  any 
other  person  to  speak  to  them  touching  any  matter  relative  to  this  trial, 
until  they  return  into  court.”  And  thereupon  the  prisoner  was  re¬ 
manded  to  prison. 

At  which  time  the  jury  so  committed  to  the  custody  of  the  deputy 
sheriffs  as  aforesaid  were  again  brought  into  court,  and  the  prisoner  set 
to  the  bar  in  the  custody  of  the  jailor ;  and  Mordecai  Thomas  and 
Crayton  J.  Loraine,  who  also  stand  indicted  for  felony,  were  also  set  to 
the  bar  in  the  custody  of  the  jailor.  And  the  said  Mordecai  Thomas 
and  Crayton  J.  Loraine  consenting  and  agreeing  to  be  tried  by  the  same 
jury  which  was  sworn  and  impannelled  for  the  trial  of  Peter  M.  Gar¬ 
ner,  and  to  abide  by  the  same  evidence  given  on  the  trial  of  the  said 
Peter  M.  Garner,  and  the  said  jury  being  duly  sworn  the  truth  to  speak 
of  and  upon  the  premises,  upon  their  oaths  do  say — 

That  they  find  the  following  facts  to  be  true,  viz  : 

That  the  congress  of  the  United  States,  on  the  6th  day  of  Septem¬ 
ber  A.  D.  1780,  took  into  consideration  the  subject  of  the  cession  to 
the  United  States  of  their  claims  to  the  western  country  by  those  states 
having  claims  to  the  same,  and  on  that  day  adopted  a  certain  report  and 
resolution  on  that  subject,  which  will  be  found  in  the  10th  volume  of 
Hening’s  Virginia  Statutes  at  Large,  in  pages  562  and  563.  That  on 
the  2d  day  of  January  A.  D.  1781,  the  legislature  of  Virginia  passed  a 
certain  resolution  for  the  cession  of  the  lands  on  the  northwest  side  of 
the  Ohio  river  to  the  United  States,  which  act  or  resolution  of  the  le¬ 
gislature  of  Virginia  will  be  found  in  said  10th  volume  of  Hening’s 
Statutes  at  Large,  at  pages  564,  565,  566  and  567.  That  on  the  13th 
day  of  September  A.  D.  1783,  congress  adopted  a  report  and  resolution 
on  the  subject  of  the  said  last  named  resolution  of  the  legislature  of 
Virginia,  which  report  and  resolution  will  be  found  in  the  4th  volume 
iof  the  Journals  of  the  Congress  of  the  Confederation,  at  pages  265,  266 
and  267.  That  on  the  20th  of  October  A.  D.  1783,  the  legislature  of 
Virginia  passed  another  act  for  the  revision  of  the  said  resolution  of 
the  2d  of  January  A.  D.  1781.  That  on  the  1st  March  A.  D.  1784, 
congress  by  resolution  agreed  to  accept  the  last  named  act  of  cession ; 
whereupon  a  deed  of  cession  was  executed  by  the  delegates  in  con¬ 
gress  from  Virginia  and  accepted  by  congress,  which  deed  will  be  found 
in  the  1st  vol.  of  the  Laws  of  the  United  States,  page  472.  That  on 
the  13th  day  of  July  1787,  congress  passed  an  ordinance  for  the  govern¬ 
ment  of  the  territory  northwest  of  the  Ohio,  which  said  ordinance, 
jamong  other  things,  declared  and  ordained  that  certain  articles  therein 
should  be  considered  as  articles  of  compact  between  the  original  states 
and  the  people  and  states  in  said  territory,  and  forever  remain  unaltera¬ 
ble  except  by  common  consent ;  one  of  the  provisions  of  which  arti¬ 
cles  of  compact  is,  that  “  the  navigable  waters  leading  into  the  Missis¬ 
sippi  and  St.  Lawrence,  and  the  carrying  places  between  the  same, 


8 


[Doc.  No.  17.] 

shall  be  common  highways  and  forever  free,  as  well  to  the  inhabitants 
of  said  territory,  as  to  the  citizens  of  the  United  States,  and  those  of 
any  other  states  that  may  be  admitted  into  the  confederacy,  without 
tax,  impost  or  duty  therefor.”  That  on  the  18th  of  December  A.  D. 
1789,  the  legislature  of  Virginia  passed  an  act  which  authorized  the 
then  district  of  Kentucky  to  erect  itself  into  an  independent  state  on 
certain  terms  and  conditions,  one  of  which  was,  “  that  the  use  and  na¬ 
vigation  of  the  Ohio  river,  so  far  as  the  territory  of  the  proposed  state 
(Kentucky)  or  the  territory  which  shall  remain  within  the  limits  of 
this  commonwealth  (Virginia)  lies  thereon,  shall  be  free  and  common 
to  the  citizens  of  the  United  States,  and  the  respective  jurisdictions  of 
this  commonwealth  and  of  the  proposed  state  on  the  river  as  aforesaid 
shall  be  concurrent  only  with  the  states  which  may  possess  the  op¬ 
posite  shores  of  the  said  river.”  See  Hening’s  Statutes  at  Large,  13th 
volume,  page  19.  That  by  act  of  congress  of  the  4th  of  February 
1791,  the  said  state  of  Kentucky  was  admitted  into  the  Union  in  pur¬ 
suance  to  said  act  of  Virginia,  and  thereby  became  one  of  the  United 
States.  That  by  act  of  congress  of  the  30th  April  1802,  the  present 
state  of  Ohio  was  authorized  to  form  a  constitution  and  state  govern¬ 
ment  and  be  admitted  into  the  Union  as  one  of  the  states  thereof ;  which 
act  prescribes  the  boundaries  of  said  state  of  Ohio,  whose  boundary  on 
the  southeast  side  is  defined  and  fixed  in  the  following  words,  viz : 
bounded  “  on  the  south  by  the  Ohio  river.”  That  the  said  state  of 
Ohio,  under  and  by  virtue  of  said  act  of  congress,  formed  a  state  con¬ 
stitution ;  and  was  admitted  into  the  Union,  with  the  boundary  afore¬ 
said,  by  another  act  of  congress  passed  on  the  3d  of  March  A.  D.  1803. 

They  further  find  that  the  said  defendants  Peter  M.  Garner,  Morde- 
cai  Thomas  and  Crayton  J.  Loraine  are  citizens  of  the  state  of  Ohio, 
and  on  the  9th  day  of  July  1845,  resided  in  that  state  about  four  miles 
back  from  the  river  Ohio,  in  the  county  of  Washington,  Ohio,  and  op¬ 
posite  said  county  of  Wood  in  Virginia.  That  on  the  night  of  said 
9th  of  July,  early  in  the  evening,  a  party  of  men  residing  in  said  county 
of  Wood,  who  had  received  information  that  the  negro  slaves  of  said 
John  H.  Harwood  of  said  county  of  Wood,  in  said  indictment  named, 
intended  to  escape  from  their  owner  on  that  night  and  abscond  from 
Virginia  into  the  state  of  Ohio,  crossed  the  Ohio  river  to  the  Ohio  shore 
nearly  opposite  the  residence  of  said  Harwood,  and  concealed  them¬ 
selves  on  the  bank  of  the  river.  That  after  remaining  some  one  or 
two  hours,  a  party  of  men,  six  in  number,  passed  by  where  they  were 
lying,  of  whom  the  said  Garner,  Thomas  and  Loraine  were  part.  That 
this  last  party  went  under  the  bank  of  the  river,  and  remained  there,  at 
some  distance  on  the  beach  above  the  water,  till  about  1  or  2  o’clock  at 
night,  when  a  canoe  with  six  negro  slaves  the  property  of  said  Harwood 
came  across  the  river  to  the  Ohio  shore.  As  it  came  near  the  shore,  the 
party  under  the  bank  gave  it  a  sort  of  hail,  to  which  an  answer  not  dis¬ 
tinctly  heard  was  returned  from  the  canoe.  That  said  negroes  landed 
said  canoe  obliquely  against  the  bank  opposite  to  where  the  party  under 
the  bank  were  standing,  running  the  bow  of  the  canoe  on  the  beach  at 
the  water  edge.  That  certain  bags  of  clothing  and  articles  of  property 
were  in  the  bow  of  the  canoe,  occupying  a  space  of  six  or  eight  feet 


9 


[Doc.  No.  17.] 

in  the  bow.  That  as  soon  as  said  canoe  struck  the  beach,  the  said 
! party  under  the  bank,  among  whom  were  said  defendants  Garner,  Tho¬ 
mas  and  Loraine,  came  down  the  beach  to  the  bow  of  the  canoe  at  the 
water  edge,  and  without  entering  said  canoe,  stepped  into  the  water  at 
the  bow,  and  assisted  said  negroes  to  take  said  bags  and  articles  of  pro¬ 
perty  out  of  the  canoe.  Said  Garner,  taking  from  the  bow  of  the  ca¬ 
noe  a  bag,  started  off  with  it  up  the  beach  towards  the  bank  of  the  ri¬ 
ver.  That  at  the  same  time  the  rest  of  the  party,  with  the  negroes, 
followed  said  Garner;  when  the  first  named  party  from  Virginia,  who 
lay  in  ambush,  rushed  down  upon  them,  retook  all  of  said  slaves  ex¬ 
cept  one,  and  forcibly  seized  the  said  defendants  Garner,  Thomas  and 
Loraine,  and  forcibly  carried  them  across  the  Ohio  river  into  said  county 
of  Wood,  where  they  have  been  since  detained  in  prison,  and  where 
the  indictment  on  which  they  are  now  on  trial  was  found  against  them. 

And  they  further  do  find  that  the  river  Ohio,  at  that  stage  of  it 
which  the  boatmen  on  said  river  call  low  water,  the  water  in  the  chan¬ 
nel  on  the  bars  is  from  17  to  20  inches  deep.  That  at  extreme  low 
water,  or  where  the  water  was  once  known  to  be,  the  water  on  said 
bars  in  the  channel  was  eleven  inches  deep.  That  on  the  said  9th  of 
July,  the  water  on  said  bars  in  the  channel  was  thirty-nine  (39)  inches 
deep.  That  the  average  depth  of  water  in  the  channel  on  said  bars 
for  the  whole  year  is  six  feet,  or  thereabouts.  That  taking  the  whole 
year  round,  one  year  with  another,  the  water,  for  nine  months  in  the 
year  or  thereabouts,  would  be  above  what  it  was  on  said  9th  of  July, 
and  for  three  months  or  thereabouts,  lower  than  it  then  was.  That 
the  average  height  of  the  banks  of  the  Ohio  river  is  about  thirty-six 
feet  above  low  water ;  and  that  at  the  place  where  said  canoe  landed, 
the  bank,  on  the  Ohio  side  of  the  river,  is  about  fifteen  feet  high. 
That  below  the  banks,  the  shores  and  bottom  of  the  river  are  for  the 
most  part  a  gradually  inclined  plane,  converging  towards  the  channel  ; 
and  at  the  place  where  said  canoe  was  landed  on  the  said  night  of  the 
9th  of  July,  the  edge  of  the  water,  at  the  extreme  low  water  of  ele¬ 
ven  inches  in  the  channel,  is  some  50  or  60  feet  in  a  right  line,  mea¬ 
suring  on  the  beach,  below  where  it  was  at  that  place  on  said  night  of 
the  9th  July. 

And  they  do  further  find  that  the  said  negroes  slaves  left  the  said 
John  H.  Harwood  their  owner  and  crossed  over  the  Ohio  river  as  afore¬ 
said,  without  his  knowledge  or  consent,  and  that  the  said  articles  of 
property  in  said  canoe  were  the  goods  and  chattels  of  the  said  John  H. 
Harwood,  and  taken  by  them  from  him  without  his  consent. 

And  they  do  further  find  that  when  the  water  is  at  six  feet  in  the 
channel  on  the  bars,  the  ground  where  the  said  canoe  was  landed,  and 
upon  which  the  said  defendants  were  when  they  assisted  to  take  said 
articles  from  said  canoe,  is  covered  by  the  water  of  the  river. 

If,  from  the  foregoing  facts,  the  court  should  be  of  opinion  that  the 
offence  charged  in  the  indictment  was  committed  within  the  jurisdic¬ 
tion  of  this  court,  then  we  find  the  defendants  guilty,  and  ascertain  the 
the  term  of  the  confinement  in  the  public  jail  and  penitentiary  house 
of  this  commonwealth  for  the  term  of  three  years  each.  If,  from  the 
foregoing  facts,  the  court  should  be  of  opinion  that  the  offences  were 
2 


I 


10  [Doc.  No.  17.] 

committed  without  the  jurisdiction  of  this  court,  then  they  find  the 
defendants  not  guilty. 

And  the  court,  not  being  advised  as  to  what  judgment  to  render  on 
the  special  verdict,  take  time  to  consider  thereof  until  to-morrow. 
And  thereupon  the  prisoners  were  remanded  to  prison. 

And  on  another  day  of  said  court,  to  wit,  at  a  circuit  superior  court 
of  law  and  chancery  held  for  Wood  county  at  the  courthouse  thereof 
before  the  same  judge  aforesaid  on  the  twenty-first  day  of  November 
1845,  the  said  Peter  M.  Garner,  Mordecai  Thomas  and  Crayton  J.  Lo- 
raine  were  again  set  to  the  bar  in  the  custody  of  the  jailor :  and  there¬ 
upon  the  judge  of  this  court  informed  them  that  a  fact  essential  to  the 
decision  of  the  questions  intended  to  be  made  by  the  special  verdict 
was  omitted  in  said  verdict,  and  that  unless  they  would  agree  such 
fact,  the  court  had  determined  to  set  aside  the  said  verdict  and  award  a 
venire  de  novo.  And  thereupon  the  prisoners  in  their  own  proper  per¬ 
sons  agreed  that  the  following  fact,  being  the  fact  required,  might  be 
added  to  said  verdict,  to  wit :  That  if  the  offences  set  forth  in  the  spe¬ 
cial  verdict  found  in  these  cases  were  committed  in  any  county  in  Vir¬ 
ginia,  they  were  committed  in  the  county  of  Wood. 

The  court,  by  the  consent  of  the  prisoners  and  the  assent  of  the 
attorney  for  the  commonwealth,  doth  adjourn  to  the  general  court,  as 
questions  of  novelty  and  difficulty  arising  on  the  special  verdict  found 
in  these  cases,  the  following  : 

First.  From  the  facts  found,  was  the  offences  committed  within  the 
jurisdiction  of  this  court? 

Second.  What  is  the  territorial  boundary  of  Virginia  on  the  north¬ 
western  side  of  the  Ohio  river  ?  Is  it  the  lowest  water  mark  ?  Or  is 
it  the  ordinary  low  water  mark  ?  Or  does  it  extend  to  the  water  mark 
made  by  the  river  when  it  is  at  its  average  depth  as  found  by  the  ver¬ 
dict  ?  Or  does  it  extend  to  the  top  of  the  banks? 

Third.  Is  the  jurisdiction  of  Virginia  co-extensive  with  the  water 
while  it  is  confined  within  its  banks  ? 

Fourth.  What  is  the  effect  of  the  grant  of  Virginia,  in  her  compact 
with  Kentucky,  of  concurrent  jurisdiction  to  other  states  possessing  the 
opposite  shore  of  the  Ohio  river,  upon  the  jurisdiction  of  Virginia  on 
the  said  river  ? 

Fifth.  What  judgment  ought  this  court  to  give  on  the  said  special 
verdict  ? 

And  thereupon  the  prisoners  were  remanded  to  prison. 

Teste, 


J.  H.  NEAL,  Clerk. 


[Doc.  No.  17.] 


11 


Virginia,  to  wit : 

At  a  general  court  of  Virginia  continued  by  adjournment  and  held 
at  the  capitol  in  the  City  of  Richmond  on  Saturday  the  12th  day  of 
December  1846  : 

Present — Daniel  Smith,  John  T.  Lomax,  John  Scott,  James  E. 
Brown,  Edwin  S.  Duncan,  Joseph  L.  Fry,  John  B.  Clopton,  Richard 
H.  Baker,  John  B.  Christian,  Daniel  A.  Wilson,  Edward  Johnston, 
John  Robertson,  David  M’Comas  and  Norborne  M.  Taliaferro  esquires, 
judges. 


'  Adjourned  case  from  the 
circuit  superior  court  of 
\  law  and  chancery  for 
J  the  county  of  Wood. 


The  Commonwealth 


against 

Peter  M.  Garner,  Mordecai  Thomas  and 


i 


Crayton  J.  Loraine,  defts. 


A  majority  of  this  court  is  of  opinion  and  doth  decide, 

1st.  That  from  the  facts  found,  the  offences  charged  were  not  com¬ 
mitted  within  the  jurisdiction  of  the  circuit  superior  court  of  Wood 
county,  or  of  the  state  of  Virginia. 

2nd.  That  judgment  ought  to  be  rendered  in  favour  of  the  defen¬ 
dants. 

And  this  court  deems  it  unnecessary  to  decide  any  of  the  other 
questions  adjourned,  and  doth  not  intend  to  express  or  intimate  any 
opinion  thereon. 

Which  is  ordered  to  be  certified  to  the  circuit  superior  court  of  law 
and  chancery  for  the  county  of  Wood. 

From  the  foregoing  opinion  and  decision,  judges  Scott,  Baker,  Chris¬ 
tian,  Robertson  and  M’Comas  dissent. 

Opinion  of  M’Comas,  J.  [After  making  a  statement  of  facts  found 
in  the  special  verdict,  the  judge  proceeded  as  follows — J 

The  judge  of  the  circuit  superior  court  of  law  and  chancery  for  the 
icounty  of  Wood  adjourned  to  this  court  several  questions  of  law  ari¬ 
sing  from  the  facts  found  in  the  special  verdict ;  all  of  which  are  in¬ 
cluded  in  the  general  proposition,  Had  the  superior  court  of  Wood 
jurisdiction  to  try  the  offence  ?  And  this,  in  my  opinion,  depends 
upon  the  question  whether  the  offence  was  committed  within  the  terri¬ 
tory  of  Virginia.  Whether  the  offence  was  committed  in  Virginia  or 
not,  depends  upon  the  just  and  proper  construction  of  the  deed  of 
cession  made  by  Virginia  to  the  United  States.  But  before  I  pro¬ 
ceed  to  examine  the  construction  proper  to  be  put  upon  the  deed  of 
cession,  it  will  be  necessary  to  notice  in  a  concise  manner  the  ob¬ 
jections  made  by  the  counsel  of  Ohio  to  the  claim  of  Virginia  to 
jurisdiction  and  territory.  Indeed  that  counsel  contended  that  Virginia 
had  no  jurisdiction  to  the  territory  northwest  of  the  Ohio  river,  nor 
even  to  the  territory  bordering  on  the  Ohio  river  on  the  southeast  side 
thereof,  previous  to  the  deed  of  cession.  It  seems  to  me  to  be  too  late 
at  this  day  to  question  Virginia’s  title  to  the  said  territory. 


12 


[Doc.  No.  17.] 

Bat  if  it  were  an  open  question,  her  title  was  beyond  dispute.  The 
territory  northwest  of  the  Ohio  river  was  within  the  acknowledged 
boundaries  of  Virginia  under  the  charter  of  1609.  Bat  it  is  said,  the 
British  king  had  no  right  to  grant  such  charter,  he  having  no  title  to 
the  country  included  in  it.  It  will  not  be  necessary  to  enquire  into  the 
rights  of  the  British  ,king ;  because  no  civilized  nations  had  claim  to 
the  country  except  England  and  France,  and  by  treaty  between  those 
two  nations  the  boundaries  were  ascertained  and  fixed  between  them, 
and  the  territory  in  controversy  was  acknowledged  to  be  in  the  Eng¬ 
lish  crown,  and  of  course  by  that  treaty  the  title  of  Virginia  to  the 
lands  contained  in  her  charter,  and  comprehended  in  the  limits  of  the 
British  possessions,  was  confirmed,  and  thereby  made  good.  The 
British  king  by  several  acts,  and  particularly  by  grants  of  large  tracts 
of  land,  acknowledged  that  the  northwestern  territory  was  within  the 
jurisdiction  and  limits  of  Virginia.  No  other  colony  or  state  attempted 
to  exercise  or  extend  its  jurisdiction  or  laws  over  that  territory  ;  neither 
did  the  English  government,  except  as  a  portion  of  the  colony  of  Vir¬ 
ginia.  It  follows  therefore,  if  it  were  not  a  part  of  Virginia,  no  civi¬ 
lized  nation  ever  extended  jurisdiction  over  it. 

But  it  is  stated  that  the  charter  of  Virginia  was  annulled,  and  that 
she  has  no  right  to  claim  under  said  charter.  It  has  been  decided,  and 
I  think  rightly,  that  “  the  charter  was  annulled  so  far  as  the  rights  of 
the  company  were  concerned,  but  not  in  respect  to  the  rights  of  the 
colony.  The  powers  of  government,  the  same  powers  which  the  char¬ 
ter  had  vested  in  the  company  as  proprietor,  were  vested  in  the  crown : 
the  same  title  to  the  lands  within  its  chartered  limits,  which  the  char¬ 
ter  had  vested  in  the  company,  was  revested  in  the  crown.  Virginia, 
by  her  declaration  of  independence,  declared  that  her  boundaries  should 
be,  with  certain  exceptions,  that  of  her  ancient  charter  of  1609.  Judge 
Baldwin,  in  his  constitutional  views,  at  page  80,  remarks  that  this 
guarantee  was  fulfilled  by  the  treaty  of  peace,  in  which  his  britannic 
majesty  acknowledged  the  United  States,  to  wit,  New  Hampshire,  Ac. 
to  be  free,  sovereign  and  independent  states.  This  recognition,  relating 
back  to  the  separate  or  unanimous  declarations  by  the  states,  has  the 
same  effect  as  if  the  state  had  then  assumed  the  same  position  by  pre¬ 
vious  authority  of  the  king,  the  treaty  not  being  a  grant,  but  a  recog¬ 
nition  and  subsequent  ratification  of  their  pre-existing  condition ;  and 
all  acts  which  had  declared  and  defined  it  previous  to  the  treaty  related 
back  to  1776.” 

As  it  appears  that  the  territory  in  dispute  was  never  within  the  char¬ 
tered  limits  of  any  other  colony  or  state,  or  declared  to  be  so  by  any 
state  in  her  declaration  of  independence  either  separately  or  jointly, 
and  as  it  has  been  frequently  decided  that  the  confederation  had  ac¬ 
quired  no  land  or  territory  by  the  war,  it  follows  that  if  the  territory  in 
dispute  were  not  a  part  of  the  territory  of  Virginia,  it  did  not  belong  to 
the  United  States. 

In  relation  to  the  territory  northwest  of  the  Ohio  river,  it  ought  to 
be  recollected  that  during  the  revolutionary  war,  and  before  the  cession, 
Virginia  conquered  the  territory  by  her  own  troops,  unaided  by  the 
other  states  of  the  Union,  and  formed  the  whole  territory  into  the 


13 


[  Doc.  No.  17.  ] 

county  of  Illinois.  It  therefore  seems  to  me,  as  the  territory  was  not 
within  the  chartered  limits  of  any  other  state,  and  as  it  undoubtedly 
belonged  to  the  British  crown,  this  conquest  would  give  Virginia  an  un¬ 
doubted  right  to  it. 

As  to  the  right  of  Virginia  to  the  territory  and  dominion  extending 
to  the  Ohio  river,  no  man  could  have  entertained  a  serious  doubt. 
Long  before  the  revolutionary  war,  large  grants  of  land  had  been  made, 
as  within  the  colony  of  Virginia,  along  the  margin  of  the  river,  and 
counties  were  formed  extending  to  it.  At  the  time  of  the  declaration 
of  independence  by  Virginia,  counties  bordering  on  the  Ohio  were 
represented  in  the  convention  that  formed  the  constitution  for  the  state. 
No  other  civilized  nation  or  state  extended  or  pretended  to  extend  juris¬ 
diction  over  it,  but  it  has  always  been  under  the  exclusive  jurisdiction 
of  Virginia. 

It  being  settled  that  at  the  time  of  the  cession  Virginia  had  an  un¬ 
doubted  jurisdiction  of  the  territory  to  the  Ohio  river,  and  it  being 
clearly  established  that  if  the  territory  northwest  of  the  river  was  not 
within  her  jurisdiction,  it  had  not  been  under  the  control  or  manage¬ 
ment  of  any  civilized  people,  it  follows  that  Virginia  was  the  first  oc¬ 
cupant  of  the  banks  of  the  Ohio.  Now  then,  supposing  that  Virginia, 
having  clear  title  to  the  territory  southeast  of  the  Ohio  river,  and  no 
title  to  any  portion  of  the  territory  northwest  of  said  river,  was  yet  the 
first  settler ;  what  would  be  her  rights  to  the  river  ? 

In  Vattel’s  Law  of  Nations,  p.  179-80,  it  is  thus  laid  down  :  “  When 
a  nation  takes  possession  of  a  country  in  order  to  settle  there,  it  pos¬ 
sesses  every  thing  included  in  it,  as  lands,  lakes,  rivers,  &c.  But  it 
may  happen  that  the  country  is  terminated  and  separated  from  another 
by  a  river ;  in  which  case  it  is  asked,  to  whom  this  river  belongs?  It 
is  manifest,  on  principles  established  in  chapter  xviii.  that  it  ought  to 
belong  to  the  nation  who  first  took  possession  of  it.  This  principle 
cannot  be  denied  ;  but  the  difficulty  is  to  make  the  application.  When 
a  nation  takes  possession  of  a  country  terminated  by  a  river,  it  is  con¬ 
sidered  also  as  appropriating  the  river  to  itself;  for  a  river  is  of  such 
great  use,  that  it  is  to  be  presumed  the  nation  intended  to  reserve  it  to 
itself.  Consequently  the  nation  who  first  established  its  dominion  on 
one  of  the  banks  of  the  river,  is  considered  as  being  the  first  possessor 
of  all  that  part  of  the  river  which  terminates  its  territory.”  Virginia, 
being  the  first  to  extend  her  dominion  to  the  river,  is  entitled  to  the 
whole  river,  whether  she  owned  territory  northwest  of  it  or  not. 
What  is  included  in  the  term  river  will  hereafter  be  enquired  into. 

It  being  clearly  established  that  Virginia  had  a  right  to  the  territory 
on  both  sides  of  the  Ohio  river,  she  by  her  deed  of  cession  conveyed 
to  the  “  United  States  in  congress  assembled,  for  the  benefit  of  said 
states,  all  right,  title  and  claim,  as  well  of  soil  as  jurisdiction,  which 
this  commonwealth  hath  to  the  territory  or  tract  of  country  within  the 
limits  of  the  Virginia  charter,  situate,  lying  and  being  to  the  northwest 
of  the  Ohio  river.”  This  deed  of  cession  must  either  be  construed 
according  to  the  rules  of  the  common  law,  or  according  to  the  rules  of 
the  law  of  nature  and  of  nations.  I  am  of  opinion  it  ought  to  be  con¬ 
strued  according  to  the  law  of  nations ;  Virginia,  at  the  time,  being  to 


14 


[Doc.  No.  17.] 

all  intents  and  to  every  purpose  a  sovereign  and  independent  nation, 
and  the  states  for  whose  benefit  said  cession  was  made  being  alike 
sovereign  and  independent.  It  is  true  that  they  were  friendly  states; 
but  that  can  make  no  difference  in  the  construction  of  a  contract  be¬ 
tween  them.  2  Rutherforth’s  Inst.  p.  460.  It  is  a  general  principle 
of  the  law  of  nations,  that  a  grant  from  a  sovereign  must  be  strictly 
construed,  both  by  the  law  of  nature  and  of  nations,  and  that  it  must 
be  so  construed  even  between  sovereign  and  citizen  where  the  public 
domain  is  ceded  away.  1  Rutherforth’s  Inst.  p.  200.  Martin  v. 
Waddle ,  16  Peters  p.  367.  Arnold  v.  Mundy  — ,  1  Halsted  p.  1.  3 
Kent’s  Comm.  p.  348.  That  is  that  the  deed  is  not  to  be  construed 
most  strongly  against  the  grantor,  but  that  the  actual  intention  of  the 
grantor  must  be  gathered  from  the  whole  deed  ;  and  a  grant  made  by  a 
sovereign  will  extend  to  the  edge  of  the  water,  or  to  high  or  to  low 
water  mark,  according  to  such  intention.  Hatch  v.  Dwight ,  17  Mass. 
Rep.  2S9.  Saunders  v.  M  ’ Mackin  258. 

What  did  Virginia  intend  in  relation  to  the  Ohio  river?  Is  it  not 
clear  that  she  intended  to  reserve  to  herself  the  entire  river,  and  not  a 
part  of  it  ?  And  were  there  not  at  that  time  many  reasons  that  she 
should  have  so  retained  it,  both  for  the  purposes  of  war  and  peace  ?  It  is 
a  fact  well  known  to  history  that  the  confederation  was  considered 
nothing  but  a  rope  of  sand,  and  was  believed  by  none  to  possess  power 
to  hold  the  states  in  union ;  and  Virginia  must  have  seen  at  the  time 
of  making  the  deed  of  cession  a  probability  of  a  disunion.  But  if  she 
only  reserved  her  right  over  it  for  the  purposes  of  navigation,  it  is  cer¬ 
tain  she  intended  to  make  those  who  navigated  the  river  amenable  to 
her  laws,  and  to  throw  the  shield  of  her  protection  around  her  own 
citizens  who  might  navigate  it  in  any  stage  of  its  waters.  But  if  her 
grant  is  to  commence  at  low  water  on  the  northwestern  side,  the  ob¬ 
ject  of  her  reservation  is  altogether  defeated.  Can  it  be  believed  that 
Virginia  only  reserved  her  jurisdiction  over  the  river  when  it  was  of 
no  use  for  navigation  or  any  thing  else,  and  that  the  moment  it  be¬ 
comes  navigable  it  may  be  navigated,  and  the  persons  so  navigating, 
by  attaching  themselves  to  the  opposite  shore,  or  running  on  the  north¬ 
western  side  between  high  and  low  water  mark,  would  be  entirely  out 
of  her  jurisdiction,  while  yet  they  would  be  on  and  navigating  the 
Ohio  river,  which  Virginia  reserved  to  herself? 

Some  light  may  be  thrown  upon  the  construction  of  the  deed  of  ces¬ 
sion  by  an  examination  of  the  definition  of  a  river  given  by  writers  on 
national  law. 

The  most  approved  of  those  writers  define  a  river  to  consist  of  the 
water,  the  bed,  and  the  banks.  It  is  a  compound  idea:  it  cannot  exist 
in  the  absence  of  any  of  its  constituent  parts.  Deprive  it  of  a  bank, 
and  it  loses  its  character  of  a  river.  Take  from  it  its  bed,  and  the  same 
consequences  ensue.  It  cannot  be  confined  to  the  simple  term  water , 
because  that  is  only  an  ingredient  of  the  compound.  Then  you  must 
necessarily  associate  the  bed,  the  banks  and  the  water,  to  constitute 
any  idea  of  the  term  river.  Thus  Rutherforth,  in  his  1st  Inst.  p.  90, 
91,  in  giving  his  reason  why  the  ocean  does  not  admit  of  property, 
says,  it  “  is  not  contained  within  banks  or  shores  ;  for  it  rather  encom- 


15 


[Doc.  No.  17.] 

passes  the  land,  the  continent  as  well  as  the  islands,  than  is  encom¬ 
passed  by  it.  The  natural  uncertainty  therefore  of  the  thing,  both  as 
to  the  whole  of  it  and  as  to  its  principal  parts,  renders  it  incapable  of 
being  appropriated  by  occupancy.  But  the  case  of  rivers,  bays,  straits, 
pools  or  lakes  is  different  from  that  of  the  ocean.  For  though,  as  fluid 
bodies,  they  are  not  set  out  into  certain  and  determinate  parcels  by  any 
marks  or  limits  upon  their  surface,  yet  as  they  are  contained  within 
banks  or  shores,  which  are  near  to  one  another,  they  are  by  this  means 
made  certain  and  determinate  enough  to  admit  of  property  by  occu¬ 
pancy.” 

Now  if  this  be  the  true  definition,  then  the  Ohio  river  is  all  that 
space  contained  between  its  banks,  and  the  territory  ceded  must  ne¬ 
cessarily  commence  at  high  water  mark  while  the  water  is  contained 
within  its  banks.  But  if  the  banks  are  not  to  be  taken  into  conside¬ 
ration,  the  bed  does  certainly  form  a  portion  of  the  river  ;  and  the 
water  receding  for  an  hour,  a  day  or  a  month,  or  even  three  months, 
and  again  returning  and  occupying  the  said  space  for  at  least  nine 
months  in  the  year,  would  not  destroy  its  character  of  bed  of  the  river. 

That  such  was  the  construction  put  upon  the  deed  of  cession  by 
Virginia  seems  to  follow  from  her  compact  with  Kentucky.  In  the 
said  compact  she  secured  to  all  the  citizens  of  the  United  States  the 
free  navigation  of  the  Ohio  river,  and  to  the  states  possessing  the  op¬ 
posite  shores  concurrent  jurisdiction  with  herself  and  Kentucky  on  the 
river;  and  as  this  jurisdiction  was  given  for  the  purposes  of  naviga¬ 
tion,  it  must  be  so  construed  as  to  make  the  grant  effectual  for  that 
purpose,  and  must  of  necessity  have  extended  to  all  the  river  within 
the  territory  of  Virginia,  at  every  stage  of  its  waters.  Can  any  person 
read  this  compact  with  Kentucky,  and  doubt  that  Virginia  believed 
she  possessed  exclusive  jurisdiction  of  the  entire  river?  In  her  grant, 
she  does  not  ask  of  the  states  bordering  on  the  northwestern  side 
of  the  river  any  other  or  further  jurisdiction  for  herself  on  said  river, 
nor  did  she  make  the  grant  to  the  other  states  depend  upon  their  con¬ 
ferring  any  jurisdiction  upon  her  ;  for  the  plain  reason,  that  she  did  not 
think  they  possessed  any  thing  to  grant. 

It  is  contended  by  some,  that  the  other  states  having  accepted  and 
Exercised  the  concurrent  jurisdiction  given  them  by  Virginia  has 
diereby  conferred  concurrent  jurisdiction  upon  her  between  high  and 
ow  water  mark  on  the  Ohio  side.  I  shall  not  here  undertake  to  de¬ 
cide  whether  this  be  so  or  not.  But  I  am  inclined  to  think  that  that 
*rant  gave  Virginia  no  jurisdiction  beyond  that  which  she  had  reserved 
ay  the  deed  of  cession.  But  if  she  has  so  obtained  jurisdiction,  it  is 
Decause  the  act  or  thing,  over  which  jurisdiction  is  given,  was  commit¬ 
ted  upon  the  Ohio  river :  and  it  seems  that  the  same  reasoning,  seeing 
hat  Virginia  had  retained  the  Ohio  river  to  herself,  would  carry  the 
.erritorial  to  the  same  extent  with  her  concurrent  jurisdiction.  That 
Virginia  intended  to  retain  jurisdiction  over  the  whole  river,  is  mani- 
est  from  the  fact  that  she  conferred  concurrent  jurisdiction  upon  no 
Dther  state  until  after  the  adoption  of  the  constitution  of  the  United 
States,  when  all  fears  of  a  dissolution  of  the  Union  were  dispelled. 


16 


[  Doc.  No.  17.  ] 

There  would  be  no  difficulty  in  giving  the  deed-of  cession  the  con¬ 
struction  here  contended  for,  were  it  not  for  the  opinion  of  the  supreme 
court  of  the  United  States  in  the  case  of  Handly's  lessee  v.  Anthony 
fy  al.  5  Wheaton  p.  374.  I  propose,  in  a  concise  manner,  to  examine 
that  opinion.  The  first  thing  to  be  observed  is,  that  it  was  not  neces¬ 
sary  for  the  court,  in  order  to  decide  that  case,  to  ascertain  the  boun¬ 
dary  between  Indiana  and  Kentucky ;  it  being  clear  that  the  land  in 
controversy  belonged  to  the  main  land  of  Indiana,  and  that  it  was  par¬ 
tially  separated  from  the  other  main  land  at  high  water  by  a  bayou 
making  out  of  the  Ohio  river  and  running  into  other  watercourses  and 
again  emptying  itself  into  the  river.  As  well  might  it  be  contended 
that  the  making  a  canal  through  in  the  same  direction  would  have  de¬ 
prived  Indiana  of  her  jurisdiction.  It  also  appeared  that  the  govern¬ 
ment  of  the  United  States  ever  after  the  cession,  and  Indiana  after  she 
had  been  formed  into  a  state,  had  extended  their  laws  and  exercised 
jurisdiction  over  the  land  in  controversy,  and  Kentucky  had  never  ex¬ 
tended  her  laws  over  it  or  claimed  any  jurisdiction  over  persons  or  pro¬ 
perty  residing  on  it.  In  order  to  shew  that  it  was  necessary,  for  the 
purpose  of  deciding  the  case,  to  ascertain  the  boundaries  of  Indiana 
and  Kentucky,  the  opinion  of  the  judge  below  is  relied  upon.  But 
this  surely  cannot  mend  the  matter;  because,  if  it  were  not  necessary 
for  the  court  below  to  decide  that  question,  its  having  done  so  could 
not  create  a  necessity  for  the  supreme  court  to  decide  it.  But  what  is 
decided  by  that  case  ?  Nothing  except  the  rights  of  the  parties  to  the 
land  in  controversy.  It  does  not  establish  the  boundary  line  between 
Kentucky  and  Indiana.  Neither  Kentucky,  Virginia,  Indiana  not 
Ohio  is  bound  by  it.  By  the  opinion  of  the  supreme  court  it  is  con¬ 
ceded  that  Virginia  intended  to  reserve  to  herself  the  river  Ohio;  but 
in  ascertaining  what  the  river  is,  it  did  not  follow  the  definition  giver 
by  the  writers  on  international  law,  nor  any  other  definition  that  I  have 
been  enabled  to  discover,  but  seemed  arbitrarily  to  confine  it  to  the 
lowest  stage  of  the  water,  and  by  so  doing,  one  third  if  not  one  hal: 
of  the  entire  bed  of  the  river,  which  is  covered  with  water  ten  month; 
in  the  year,  is  decided  to  be  no  part  or  portion  of  the  river.  The  chie: 
justice  says,  “in  pursuing  this  inquiry,  we  must  recollect  it  is  not  the 
bank  of  the  river,  but  the  river  itself,  at  which  the  cession  of  Virginir 
commences;”  meaning,  as  I  suppose,  the  water  of  the  river  at  its  low 
est  stage.  Whether  this  be  correct  or  not,  will  depend  on  the  questior 
whether  the  word  river  is  a  compound  idea,  consisting  of  banks,  bet 
and  water.  If  this  idea  of  a  river*  be  correct,  then,  if  this  reasoning 
be  correct,  commencing  at  the  banks  would  be  commencing  at  tht 
river.  But  even  suppose  it  should  commence  at  the  water ;  is  it  no 

#  Ao/e  by  the  judge.  It  will  be  readily  seen  that  Virginia,  in  reserving  the  river  tc 
herself,  must  of  necessity  have  included  the  opposite  bank  to  high  water  mark,  be 
cause,  in  setting  apart  the  southeastern  shore  and  the  water  on  the  opposite  shore  t< 
the  lowest  mark,  this  could  not  be  the  river,  or  the  whole  river,  but  only  an  indeterrni 
nate  and  undetermined  part ;  for  in  the  very  nature  of  the  river  under  discussion,  th< 
water  never  recedes  to  any  given  point  any  two  years  alike.  She  must  have  contempla 
ted  a  reservation  of  the  whole  river,  in  order  to  grant  the  right  of  navigation,  which  sh 
could  not  have  done  unless  the  exclusive  property  in  and  jurisdiction  over  the  entir 
river  had  been  hers. 


17 


[  Doc.  No.  17.  ] 

proper  that  it  should  be  placed  at  that  point  where  the  water  usually 
stands  for  nine  months  in  the  year?  The  chief  justice  quotes  the  fol¬ 
lowing  passage  from  Yattel :  “  If  a  country  which  borders  on  a  river 
has  no  other  limits  than  the  river  itself,  it  is  in  the  number  of  territo¬ 
ries  that  have  natural  or  indeterminate  limits,  and  it  enjoys  the  right  of 
alluvion.”  And  he  then  proceeds  to  say,  “  Any  gradual  accretion  of 
land,  then,  on  the  Indiana  side  of  the  Ohio  would  belong  to  Indiana ; 
and  it  is  not  very  easy  to  distinguish  between  land  thus  formed  and 
land  formed  by  the  receding  of  the  water.”  This  quotation  and  argu¬ 
ment  is  used  to  establish  the  low  water  mark  as  the  boundary.  Let 
us  examine  this  doctrine  of  alluvion  somewhat  in  detail,  and  see  what 
:onsequences  will  result  from  it. 

In  YattePs  Law  of  Nations,  ch.  22,  p.  181,  the  proposition  is  dis¬ 
tinctly  asserted  that  alluvion  can  in  no  manner  affect  the  right  of  pro¬ 
perty  in  the  river ;  for,  says  the  writer,  “  As  soon  as  it  is  established 
that  a  river  separates  two  territories,  whether  it  remains  common  to  the 
inhabitants  on  each  of  its  banks,  or  whether  each  shares  half  of  it,  or 
whether,  in  short,  it  belongs  entirely  to  one  of  them,  their  rights  with 
respect  to  the  river  are  no  ways  changed  by  the  alluvion.”  Thus  the 
loctrine  of  alluvion  can  have  no  possible  bearing  upon  a  question  of 
boundary ;  for  it  depends  upon  the  priority  of  claim  or  right,  whether 
the  line  shall  be  the  middle  of  a  river,  or  to  the  opposite  shore  from  the 
state  or  kingdom  that  is  asserting  its  jurisdiction. 

It  is  true  that  if  by  a  slow  and  gradual  process  land  was  formed  on 
the  Ohio  side,  and  in  fifty  years  the  river  should  be  thrown  a  mile  or 
more  upon  the  Virginia  territory;  or  if  the  river  should  gradually  and 
imperceptibly  recede,  so  as  to  leave  its  original  bed,  and  thus  form  a 
new  bed  upon  the  territory  of  Virginia,  still  the  river  would  be  the  line, 
and  the  land  thus  deserted  by  the  river  would  be  the  property  of  Ohio. 
But  if  at  the  end  of  fifty  years  the  river  commenced  gradually  to  re¬ 
turn,  and  in  the  course  of  time  did  return  to  its  ancient  bed,  the  line 
between  the  states  would  still  follow  the  river,  and  the  land  formed  or 
deserted  would  belong  to  Virginia.  Now  apply  this  principle  to  the 
gradual  recession  of  the  Ohio  river  during  the  summer  months,  as  it 
was  applied  by  the  supreme  court  to  shew  that  the  low  water  mark 
was  the  true  boundary,  and  a  very  different  result  follows  to  that  ar¬ 
rived  at  by  the  court ;  for  if  the  line  follows  the  water  as  it  recedes  to 
its  lowest  point,  it  would  return  with  it  when  the  water  covered  its 
bed  and  filled  its  channel.  But  in  truth  the  doctrine  of  alluvion  and 
recession  cannot  be  applied  in  the  rise  and  fall  of  rivers.  The  acces¬ 
sion  of  the  water  to  any  mark  cannot  prejudice  the  boundary  line,  or 
the  possession  and  appropriation  of  the  river;  for,  says  Vattel,  (Law  of 
Nations,  ch.  22,  p.  180,)  “  If  a  river  leaves  its  bed,  whether  it  be  dried 
up,  or  whether  it  takes  its  course  elsewhere,  the  bed  belongs  to  the 
master  of  the  river ;  for  the  bed  made  part  of  the  river,  and  he  who 
bad  appropriated  to  himself  the  whole,  had  necessarily  appropriated  to 
himself  the  parts.”  Again,  in  speaking  of  the  river,  he  says  :  “  But  if, 
instead  of  its  being  gradually  and  progressively  displaced,  the  river,  by 
in  accident  merely  natural,  turns  entirely  out  of  its  course  and  runs 
into  one  of  the  two  neighbouring  states,  the  bed  it  abandons  must 

3 


18 


[Doc.  No.  17.] 

serve  for  the  boundary  ;  and  it  belongs  to  the  master  of  the  river.” 
Therefore,  no  matter  how  low  the  water  is  or  ever  recedes,  it  does  not 
affect  the  boundary,  and  consequently  cannot  defeat  the  power  claim¬ 
ing  jurisdiction  to  the  opposite  bank.  In  Marten’s  Law  of  Nations, 
ch.  4,  sec.  3,  p.  159,  the  doctrine  is  emphatically  settled,  that  “  a  na¬ 
tion  may  be  understood  as  lawfully  occupying  the  river  on  its  frontiers, 
even  to  the  opposite  banks.  But  if  these  banks  are  occupied  by  ano¬ 
ther  nation,  and  if  it  be  impossible  to  determine  which  of  the  two  has 
had  the  prior  possession,  it  ought  to  be  presumed  that  both  took  pos¬ 
session  at  the  same  moment,  and  consequently  met  in  the  middle.” 
Thus  Virginia  having  established  her  title  by  priority  of  possession, 
and  not  having  ceded  the  same,  she  must  of  necessity  have  retained 
her  jurisdiction,  in  accordance  with  the  law  of  nature  and  of  nations, 
to  the  opposite  side  of  the  Ohio  river,  at  a  point  not  less  than  high  wa¬ 
ter  mark  within  its  banks.  And  the  only  exception  to  this  rule  is  the 
event  of  two  states  settling  on  the  river  at  the  same  time,  or  having 
had  possession  so  long  that  it  is  impossible  to  determine  which  settled 
first  upon  its  shores.  On  all  other  occasions  the  rule  is  inflexible. 

In  construing  the  deed  of  cession,  the  supreme  court  seems  not  to 
have  adopted  the  rules  of  construction  of  the  national,  natural,  or  com¬ 
mon  law,  but  to  have  fixed  a  rule  of  convenience,  not  to  Virginia,  but 
to  the  new  states  to  be  formed  out  of  the  territory  ceded.  After 
speaking  of  the  cession,  it  says :  “  And  this  territory,  according  to  ex¬ 
press  stipulation,  is  to  be  laid  off  into  independent  states.  These 
states,  then,  are  to  have  the  river  itself,  wherever  that  may  be,  for  their 
boundary.  This  is  a  natural  boundary  ;  and  in  establishing  it,  Virginia 
must  have  had  in  view  the  convenience  of  the  future  population  of 
the  country.” 

It  cannot  be  doubted  that  Virginia,  to  some  extent,  had  the  conve¬ 
nience  of  the  future  population  of  the  new  states  in  view.  But  that 
convenience  was  subordinate  to  the  interest  and  protection  of  her  citi¬ 
zens.  One  thing  is  certain,  that  she  intended  to  extend  her  own  mu¬ 
nicipal  regulations  over  every  person  who  navigated  the  Ohio  river.  It 
is  said,  that  it  is  expressly  stipulated  that  new  states  should  be  formed 
out  of  the  territory  ceded.  It  is  equally  true  that  Virginia  knew  that 
in  a  short  time  those  states  might  be  hostile.  She  certainly  knew  they 
would  be  states  in  which  slavery  would  not  be  tolerated.  Is  it  not 
probable  that  she  retained  her  dominion  over  the  whole  river  to  protect 
her  slave  property?  She  must  have  known  that  a  slave  entering  a 
country  in  which  slavery  was  not  established  by  law  and  in  which  the 
common  law  prevailed,  with  or  without  the  consent  of  the  master, 
would  be  free.  But  the  states  having  engaged  in  the  constitution  tc 
deliver  up  slaves  who  had  escaped  from  their  owners,  Virginia  nc 
doubt  believed  that  no  danger  would  result  to  that  property  by  giving 
other  states  concurrent  jurisdiction  over  the  river.  But  if  Virginia  did 
not  intend  to  reserve  the  whole  river  to  herself,  but  fixed  the  boundary 
to  the  low  water  mark  on  the  northwestern  side,  then  she  has  failed  tc 
afford  protection  to  her  citizens  navigating  the  river.  If  the  jurisdic¬ 
tion  of  Ohio  commences  at  low  water  mark,  it  is  an  exclusive  jurisdic¬ 
tion  to  all  the  territory  northwest  of  it,  which  jurisdiction  cannot  be 


19 


[Doc.  No.  17.] 

affected  by  high  or  low  water;  and  therefore  a  citizen  of  Virginia 
navigating  the  river  in  his  own  boat,  with  his  own  slaves,  and  inten¬ 
tionally  passes  between  high  and  low  water  mark  on  the  Ohio  side, 
the  slaves  would  become  instantly  free;  or  if  he  had  a  ferry  established 
from  Virginia  to  the  Ohio  shore,  and  should  send  his  slave  with  it 
across  the  river,  the  moment  the  boat  crossed  the  low  water  mark  or 
struck  the  Ohio  shore,  his  property  in  the  slave  would  cease.  But  it 
is  contended  this  would  not  be  so.  Let  us  examine  it.  No  one  can 
doubt,  were  it  not  for  the  provision  of  the  constitution  before  alluded 
to,  that  if  a  slave  escaped  from  his  master  into  any  of  the  free  states, 
he  would  become  instantly  free.  But  the  right  of  the  master  to  the 
slave  is  only  protected  when  he  escapes  from  possession  and  enters  a 
free  state  without  his  consent.  The  instant  the  master  consents  to  his 
entering  the  free  state,  the  constitution  no  longer  protects  his  property 
in  the  slave,  but  the  law  of  the  state  which  he  enters  operates  and  sets 
him  free.  In  order  to  avoid  this  conclusion,  it  is  contended  that  the 
concurrent  jurisdiction  of  Virginia  extends  to  high  water  mark,  not¬ 
withstanding  her  territorial  jurisdiction  extends  only  to  low  water 
mark.  It  seems  to  me,  such  a  position  cannot  be  sustained  ;  because, 
if  Virginia  granted  from  low  water  mark,  she  has  conferred  exclusive 
jurisdiction  upon  the  United  States  (which  has  been  transferred  to  the 
state  of  Ohio)  over  the  whole  territory  from  the  place  of  its  commence¬ 
ment.  And  neither  the  United  States  nor  Ohio  have  conferred  any 
jurisdiction  upon  Virginia  over  the  territory  ceded,  nor  has  Virginia 
asked  that  such  jurisdiction  should  be  conferred  upon  her.  She  has 
not  made  it  the  condition  of  any  right  granted  to  Ohio.  It  therefore 
cannot  result  from  implication.  Therefore,  if  the  line  is  fixed  at  low 
water  mark,  and  a  citizen  of  Virginia  voluntarily  passes  within  that 
line,  he  is  as  much  under  the  jurisdiction  and  amenable  to  the  laws  of 
Ohio  as  if  he  were  at  her  seat  of  government.  But  it  is  said  that 
having  the  right  to  navigate  the  river  protects  the  property  of  the  mas¬ 
ter  in  the  slaves  engaged  with  him  in  such  navigation.  This  cannot 
be  so,  because  the  right  to  navigate  confers  no  jurisdiction.  Where 
one  state  or  nation  confers  upon  the  citizens  of  another  the  right  to 
navigate  its  rivers,  the  citizens  so  navigating  by  such  permission  are 
under  the  jurisdiction  and  amenable  to  the  laws  of  the  sovereign  whose 
'ivers  they  are  so  navigating.  The  citizens  of  Virginia  have  a  right 
to  navigate  all  the  rivers  within  the  boundaries  of  Ohio,  yet  it  would 
hardly  be  supposed  they  would  have  a  right  to  employ  their  slaves  in 
such  navigation  and  retain  their  property  in  them  as  slaves,  against  the 
provision  of  the  laws  of  Ohio.  Every  citizen  of  the  United  States 
has  the  right  to  navigate  the  James  river,  and  no  one  will  contend  that 
so  navigating  it  they  are  not  subject  to  the  laws  of  Virginia. 

As  to  the  argument  of  inconvenience  to  Ohio,  it  is  not  necessary  to 
say  any  thing  further  than  to  observe  that  most  of  the  inconveniences 
complained  of  would  happen  whether  the  line  was  fixed  at  high  or 
low  water  mark.  Neither  will  it  be  necessary  to  ascertain  what  her 
ights  to  the  river  would  be  as  the  owner  of  one  of  its  borders  ;  be¬ 
cause  every  right  that  she  could  ask  is  conferred  upon  her  by  giving 
tier  concurrent  jurisdiction. 


20 


[  Doc.  No.  17.  ] 

The  inconvenience  supposed  to  arise  from  the  power  of  individuals 
to  locate  the  land  between  high  and  low  water  mark  on  the  Ohio  side 
cannot  exist,  because,  if  the  space  between  the  banks  be  decided  to 
be  the  bed  of  the  river,  it  would  not  be  subject  to  location. 

It  seems  to  have  had  great  influence  with  the  supreme  court  in  es¬ 
tablishing  the  low  water  mark,  that  it  was  the  most  convenient  and 
easily  ascertained  boundary.  It  seems  to  me  that  no  boundary  could 
have  been  fixed  that  could  be  more  uncertain,  or  that  could  not  be 
more  easily  ascertained.  Does  it  mean  the  lowest  point  to  which  the 
river  ever  recedes  ?  By  some  it  is  said  not,  but  ordinary  low  water. 
Now  what  is  ordinary  low  water  ?  Does  it  mean  the  lowest  point  to 
which  the  river  ever  has  fallen  during  seasons  not  remarkable  for  drought 
or  for  the  quantity  of  rain  that  may  have  fallen  in  any  given  year? 
If  so,  there  are  no  two  years  in  which  the  line  could  have  been  the 
same.  But  the  reasoning  used  to  fix  it  at  the  low  water  mark  will 
carry  it  down  to  the  very  lowest  point  to  which  the  water  ever  rece¬ 
ded.  The  argument  by  which  the  line  is  carried  to  ordinary  low  -water 
mark  is,  that  the  river  recedes  from  a  part  of  its  bed  for  three  months, 
from  another  part  one  month,  and  from  another  a  week  in  the  year, 
leaving  the  sand  and  gravel  uncovered  by  water:  it  thereby  loses  its 
character  of  being  the  bed,  and  consequently  a  part  of  the  river,  and 
acquires  the  character  of  land  freed  from  the  river.  It  would  seem 
therefore  to  follow  that  after  the  river  had  fallen  to  its  ordinary  point 
of  low  water,  and  still  continued  to  fall  for  a  month,  leaving  a  consi¬ 
derable  portion  of  its  bed  bare  between  the  ordinary  low  water  mark 
and  the  edge  of  the  water,  with  the  same  reasoning  would  it  not  pro¬ 
perly  be  denominated  main  land  and  forming  a  part  of  the  territory 
of  Ohio  ?  It  is  a  fact  well  known  that  at  low  water  there  are  many 
narrow  bars  commencing  at  the  Ohio  shores  and  running  more  than 
half  way  across  the  entire  river.  In  accordance  with  the  opinion  ol 
the  supreme  court,  these  would  be  a  part  of  the  territory  of  Ohio  and 
under  her  exclusive  jurisdiction,  and  their  afterwards  being  covered 
by  water  would  or  could  not  change  that  jurisdiction.  Can  it  be  pos¬ 
sible  that  Virginia  for  a  single  moment  intended  to  establish  any  such 
line  ?  In  practice  it  would  be  impossible  to  ascertain  the  low  watei 
line,  because  on  this  trial  no  man  could  tell  where  the  low  water  marli 
was  at  the  place  where  the  crime  was  committed,  yet  almost  all  could 
tell  the  high  water  line.  I  therefore  conclude  that  the  high  watei 
mark,  while  the  river  is  contained  within  its  ordinary  banks,  is  much 
the  most  convenient  and  easily  ascertained  boundary. 

Upon  the  whole,  I  am  of  opinion  that  the  circuit  superior  court  o 
law  and  chancery  for  Wood  county  had  jurisdiction  to  try  the  offence 
set  out  in  the  indictment. 

Opinion  of  Robertson,  J.  The  various  questions  adjourned  b) 
the  circuit  superior  court  of  Wood  county  for  our  opinions  may  b( 
resolved  into  one  :  Is  the  place  in  which  the  criminal  offence  chargee 
in  the  indictment  is  found  to  have  been  committed,  within  the  juris 
diction  of  Virginia  ? 


21 


[  Doc.  No.  17.  ] 

It  is  a  question  purely  legal.  Regarding  it  in  that  aspect,  I  shall 
pass  without  comment  all  arguments  of  a  political  complexion,  and 
especially  those  upon  the  exciting  topics  of  slavery  and  abolition. 

I  shall  also  decline  all  examination  of  the  original  title  of  Virginia 
to  the  territory  northwest  of  the  river  Ohio.  The  occupation  of  that 
territory  by  this  state,  and  legislation  over  it,  prior  to  its  cession  to  the 
United  States,  and  indeed  the  terms  of  the  cession  itself,  would  seem 
sufficient  evidence  of  such  title  in  the  present  case,  and  perhaps  in 
any  case  between  Virginia  and  Ohio  ;  the  latter  having  no  claim  ex¬ 
cept  under  that  cession.  But  independently  of  these  considerations, 
the  question  is  concluded  by  the  solemn  declaration  of  this  state  in 
its  sovereign  capacity,  contained  in  the  constitution  of  1776.  To 
that  instrument  all  the  departments  of  our  state  government  owe  their 
existence  and  acknowledge  implicit  obedience.  The  judiciary  at  least 
have  no  power  to  change  the  limits  of  the  commonwealth  proclaimed 
in  her  organic  law.  The  result  of  a  decision  in  conformity  with  the 
pretensions  of  the  defendants,  if  such  a  decision  were  in  a  legal  sense 
possible,  would  be  not  merely  to  dismember  the  state,  but  to  annul 
the  commission  of  every  judge  of  this  court  residing  in  the  transalle- 
ghany  country,  the  title  to  which,  it  is  argued,  stands  upon  the  same 
footing  with  that  to  the  northwestern  territory  ;  and  thus,  in  the 
same  breath  in  which  we  announce  our  judgment,  to  proclaim  its  in¬ 
validity. 

One  further  preliminary  remark  : 

We  sit  here  as  a  state  court,  in  the  exercise  of  our  ordinary  muni¬ 
cipal  jurisdiction  over  individuals  charged  with  a  criminal  offence. 
Our  decision  cannot  settle  definitively  the  question  of  boundary — 
certainly  not  as  against  Ohio,  and  by  consequence,  it  would  seem,  not 
as  against  Virginia.  Still,  in  the  particular  case,  and  as  a  precedent  or 
rule  in  others  of  a  similar  nature,  be  that  decision  what  it  may,  it 
must  determine  the  rights  and  vitally  affect  the  interests  of  citizens 
claiming  under  these  states  respectively.  And  thus  viewing  it,  I 
feel  it  due  to  myself  to  assign  the  reasons  which  have  led  my  mind  to 
its  conclusions. 

The  propositions  contended  for  on  the  part  of  the  defendants  are, 
that  the  states  of  Ohio  and  Virginia  are  hounded  by  the  middle  of 
the  channel  of  the  Ohio  river ,  or  at  the  least  by  the  low  water  mark 
on  the  northwestern  side.  For  the  commonwealth  it  is  urged  that  the 
banks  of  the  river ,  or  high  water  mark ,  constitute  the  true  boundary  ; 
or  if  not ,  the  edge  or  margin  of  the  water  for  the  time  being ,  ivhere- 
ver  that  may  be. 

The  first  proposition  of  the  defendants,  that  insisting  on  the  middle 
of  the  channel,  is  based  upon  the  supposition  that  Virginia  had  no  ori¬ 
ginal  title  to  the  Ohio  river,  or  territory  beyond  it.  The  cession  is 
treated  as  a  mere  compromise,  whereby  Virginia  yielded  that  to  which 
she  had  no  superior  right.  This  supposed  defect  of  title  has  been 
urged  upon  the  one  side  and  denied  upon  the  other,  in  arguments  of 
great  labour  and  ability ;  but  for  reasons  already  stated,  I  deem  it  un¬ 
necessary  and  improper  to  investigate  that  question;  and  upon  this 
point  I  believe  no  difference  of  opinion  exists  among  the  judges. 


22 


[Doc.  No.  17.] 

Rejecting  this  proposition,  then,  as  wholly  without  foundation,  and 
assuming,  as  we  are  bound  to  do,  that  the  northwestern  territory  and 
the  river  Ohio  itself  were  in  the  limits  of  Virginia  at  the  time  of  her 
cession  to  the  United  States,  the  next  enquiry  is,  Does  the  boundary  of 
the  state  of  Ohio  extend  to  low  water  mark  on  the  northwestern  side 
of  the  river,  and  to  that  limit  exclude  the  jurisdiction  of  Virginia? 

The  supreme  court  of  the  United  States,  it  is  said,  have  so  decided 
in  effect,  if  not  expressly,  in  the  case  of  Handley's  lessee  v.  Anthony; 
and  upon  the  authority  or  strength  of  that  case,  mainly  if  not  exclu¬ 
sively,  depends  the  great  question  involved  in  this.  The  decision  is 
not  pressed  upon  the  court  as  one  conclusively  controlling  our  judg¬ 
ment.  Were  such  its  effect,  it  would  have  been  useless  indeed  to  ad¬ 
journ  to  us  the  questions  under  consideration,  and  a  waste  of  time  to 
discuss  or  consider  them.  Those  questions  have  been  propounded  for 
our  opinions,  and  we  must  decide  them,  directed  by  the  light,  imper¬ 
fect  as  it  may  be,  of  our  own  understandings,  and  undazzled  by  the 
lustre  of  great  names.  The  judgment  of  the  supreme  court  undoubt¬ 
edly  is  entitled  to  the  utmost  deference:  but  conceded  as  it  is  not  to 
be  of  binding  authority  in  the  present  case,  and  controverted  as  it  has 
been  by  counsel  on  both  sides,  we  cannot,  if  we  would,  decline  the 
duty  of  examining  with  freedom  as  well  as  candour  the  reasons  upon 
which  it  is  founded.  Such  an  examination  seems  demanded  at  our 
hands,  not  merely  because  of  the  important  interests  involved,  but 
because  the  propositions  asserted  are  exceedingly  questionable,  if  in¬ 
deed  they  are  not  a  plain  innovation  upon  the  established  doctrines  of 
the  law. 

The  matter  in  controversy  was  the  right  to  a  tract  of  land  claimed 
by  the  opposing  parties  respectively  under  conflicting  grants  of  Ken¬ 
tucky  and  Indiana.  This  brought  up  necessarily  the  question  of  boun¬ 
dary  between  those  states,  which  in  principle  I  concede  is  the  same 
with  that  between  Virginia  and  Ohio.  The  court  in  which  the  trial 
was  had  instructed  the  jury,  that  admitting  that  the  boundary  of 
Kentucky  included  all  the  islands  of  the  Ohio  river  and  extended  to 
the  northwestern  bank  of  the  river ,  yet  no  land  could  be  called  an  is¬ 
land  of  that  river  unless  it  was  surrounded  by  the  water  of  the  Ohio 
at  low  water  mark ;  and  that  to  low  water  mark  only  on  the  western 
or  northwestern  side  of  the  Ohio  did  the  boundaries  of  the  state  of 
Kentucky  extend. 

The  supreme  court  sustained  the  instructions.  The  chief  justice  de¬ 
livered  the  opinion.  He  remarked  that  the  question  depended  chiefly 
upon  the  land  law  of  Virginia  and  her  deed  of  cession.  The  only  re¬ 
ference,  however,  he  gives  to  the  land  law,  is  to  the  clause  prohibiting 
locations  upon  the  northwestern  side  of  the  river  Ohio,  contained  in 
the  act  of  1779,  establishing  the  land  office.  10  Hen.  Stat.  p.  50. 
This  prohibition  he  thinks  was  made  with  a  view  to  the  questions 
then  agitated  relative  to  the  unsettled  territories  within  the  charters  of 
particular  states,  which  resulted  in  cessions  by  them  to  the  United 
States,  and  among  others,  in  that  by  Virginia.  It  was  intended,  he 
says,  by  Virginia  when  she  made  this  cession,  and  most  probably  when 
she  opened  her  land  office,  that  the  great  river  Ohio  should  constitute 


23 


[  Doc.  No.  17.  ] 

1  boundary  between  the  states  which  might  be  formed  on  its  opposite 
banks  ;  and  “  this  intention,”  he  adds,  “  ought  never  to  be  disregarded 
in  construing  this  cession.” 

The  motives  and  intentions  of  Virginia  may  have  been  such  as  are 
inferred :  their  bearing  upon  the  particular  question,  however,  seems 
very  remote.  None  doubt  that  by  the  cession  itself  the  river  is  con¬ 
stituted  a  boundary.  But  the  question  remains,  does  that  of  necessity 
^r  by  a  sound  construction  make  low  water  mark  the  line  of  separa¬ 
tion  ?  Surely  the  prohibition  of  all  entries  on  the  northwest  side  of 
the  Ohio  river  justifies  no  such  conclusion.  Nor  is  it  warranted,  I 
think,  by  any  other  provision  of  our  land  law,  existing  at  the  time  of 
the  cession. 

The  well  known  rule  of  the  common  law,  which  was  and  is  now 
the  law  of  Virginia,  except  so  far  as  altered  by  statute  or  inapplicable 
to  the  country,  is  that  lands  bounded  by  the  sea,  or  on  navigable  rivers 
where  the  tide  ebbs  and  flows,  extend  to  high  water  mark  only ;  but 
oounded  on  rivers  or  upon  the  margin,  or  along  the  same,  above  tide¬ 
water,  go  to  the  centre  of  the  stream. 

So  far  as  regards  rivers  and  creeks  not  navigable,  the  rule  last  men¬ 
tioned  has  always  been  considered  and  still  is  the  law  of  Virginia.  4 
Dali  R.  441.  1  Rand.  R.  417.  3  Rand.  R.  33.  6  Rand.  R.  245. 

But  the  beds  of  all  navigable  streams  were  considered  as  the  proper¬ 
ty  of  the  commonwealth,  for  the  public  benefit;  and  in  the  case  of 
Home  v.  Richards,  4  Call  R.  441,  (as  judge  Green  remarks,  3  Rand. 
36,)  the  court  determined  they  were  not  grantable  even  before  the 
revised  act  of  December  1792,  ch.  24.  The  6th  section  of  that  act 
incorporated  the  act  of  May  1780,  ch.  2,  “  to  secure  to  the  public  cer¬ 
tain  lands  heretofore  held  as  common,”  which  prohibited  locations  of 
lands  ungranted  by  the  former  government  on  the  seashore ,  or  on  the 
shores  of  any  river  or  creek  in  the  eastern  parts  of  the  commonwealth, 
sither  under  surveys  previously  made  or  to  be  made  in  future.  The 
revised  act  of  1792  included  also  the  beds  of  such  rivers  and  creeks  in 
the  same  prohibition.  In  1802  the  prohibition  was  extended  to  the 
.western  waters;  Sess.  Acts  1801-2,  ch.  8.  After  reciting  in  the  pre¬ 
amble  that  it  had  been  represented  to  the  general  assembly  that  many 
persons  had  located,  and  laid  claim  in  consequence  of  such  location,  to 
the  banks,  shores  and  beds  of  rivers  and  creeks  in  the  western  parts  of 
the  commonwealth,  which  were  intended  and  ought  to  remain  as  a 
common  to  all  the  good  people  thereof,  the  act  declares  “  that  no  grant 
issued  for  the  same,  either  in  consequence  of  any  survey  already  made 
or  which  may  hereafter  be  made,  shall  be  valid  or  effectual  in  law  to 
pass  any  estate  or  interest  therein.” 

I  have  found  no  legislation  directly  recognizing  low  water  mark, 
.except  a  resolution  of  the  grand  assembly  in  1679,  and  the  compara¬ 
tively  late  act  of  February  1819.  The  resolution  was  inserted  in 
Hening’s  general  collection,  taken  from  a  manuscript  copy  of  the  laws. 

2  Hen.  Stat.  456  and  note.  It  seems  rather  a  judgment  than  a  law, 
pronounced  on  a  petition  of  an  individual ;  though  it  is  called  a  decla¬ 
ratory  order,  and  in  general  terms  declares  that  “  every  man’s  right  in 
vertue  of  his  pattent  extends  into  the  rivers  or  creeks  soe  farre  as  low 


24 


[  Doc.  No.  17.  ] 

water  marke,”  Ac.  Neither  the  resolution  itself,  nor  the  principle  it 
asserts,  is  to  be  found  in  any  of  the  numerous  editions  or  revisals  of 
our  laws.  If  it  was  ever  law,  I  regard  it  as  long  obsolete,  or  as  re¬ 
pealed  by  the  act  of  17S0. 

The  other  act,  that  of  February  1819,  (acts  of  1819,  ch.  28,)  re¬ 
citing  that  doubts  exist  how  far  the  rights  of  owners  of  shores,  on  the 
Atlantic  ocean,  the  Chesapeake  bay,  and  the  rivers  and  creeks  thereof, 
extend, — declares  that  “  hereafter  the  limits  or  bounds  Ac.  shall  extend 
to  ordinary  low  water  mark”  Ac.  with  this  proviso,  among  others,  that 
nothing  in  the  act  shall  be  construed  to  repeal  the  6th  section  of  the 
act  concerning  the  land  office ;  meaning  the  act  of  1792. 

It  is  needless  at  present  to  enquire  into  the  reasons  (though  perhaps 
satisfactory  ones  might  readily  be  suggested)  why  the  legislature  con¬ 
fined  the  prohibition  in  the  act  of  1780,  or  the  privileges  of  the  act  of 
February  1819,  to  owners  of  lands  on  the  eastern  waters;  or  to  at¬ 
tempt  to  reconcile  the  apparent  conflict  between  the  act  of  February 
IS  19,  and  that  of  December  1792,  which  last  is  declared  not  to  be  re¬ 
pealed,  and  which  was  incorporated  in  the  revised  bill  of  March  IS  19, 
together  with  the  prohibition  relating  to  the  western  waters,  contained 
in  the  act  of  1S02.  It  is  enough  to  say,  that  as  the  land  law  of  the 
state  was  understood  and  expounded  at  the  date  of  the  cession,  no 
grant  of  land  on  the  waters  of  the  state,  eastern  or  western,  navigable 
or  unnavigable,  carried  the  right  of  the  owners  to  low  water  mark. 

Had  the  supreme  court,  then,  taken  as  their  guide  the  land  law  of 
Virginia,  embracing  the  common  law  of  England  as  it  was  originally, 
or  as  modified,  they  must  have  adopted  either  high  water  mark,  or  the 
centre  of  the  stream,  as  the  proper  line  of  demarcation :  unless  the 
cession  contained  some  express  exception,  or  clear  and  unequivocal  de¬ 
claration  to  the  contrary.  So  is  the  doctrine  as  laid  down  by  chan¬ 
cellor  Kent,  3  Kent's  Comm.  428.  But  the  cession,  and  the  cotempo- 
raneous  construction  put  upon  it,  repel  all  pretension  on  the  part  of 
Ohio  to  go  to  the  centre  of  the  stream.  This  manifestly  must  have 
been  the  opinion  of  the  court :  and  there  being  no  express  designation 
of  any  other  line,  the  legal  inference — that  which  alone  is  consistent 
with  the  law  referred  to  and  with  the  deed — is,  that  the  northwestern 
bank  of  the  river,  in  other  words  high  water  mark,  was  the  true  boun¬ 
dary. 

But  the  supreme  court,  it  may  be  said,  must  have  considered  that 
the  question  being  one  relative  to  the  boundaries  of  independent  states, 
should  be  governed  by  the  law  of  nations.  That  too,  I  think,  is  the 
opinion  of  this  court ;  and  I  entirely  concur  in  it. 

Pursuing  the  enquiry'-,  doubtless  in  this  view,  the  chief  justice  re¬ 
minds  us  emphatically  that  it  is  not  the  bank  of  the  river ,  but  the  river 
itself,  at  which  the  cession  of  Virginia  commences.  After  quoting  the 
words  of  the  grant  describing  the  territory,  and  stating  its  object  to  be 
to  create  independent  states,  he  repeats  that  these  states  were  to  have 
the  river  itself,  wherever  that  may  be,  for  their  boundary.  This,  he 
says,  is  a  natural  boundary,  and  Virginia,  in  establishing  it,  must  have 
had  in  view  the  convenience  of  the  future  population  of  the  country 
He  then  adverts  to  the  doctrine  of  the  writers  on  national  law.  “  When 


25 


[Doc.  No.  17.] 

a  great  river,”  he  says,  “is  the  boundary  between  states,  if  the  origi¬ 
nal  property  be  in  neither,  and  there  be  no  convention  respecting  it, 
each  holds  to  the  middle  of  the  stream  :  but  when,  as  in  this  case, 
one  state  is  the  original  proprietor,  and  grants  the  territory  on  one  side 
only,  it  retains  the  river  within  its  own  domain,  and  the  newly  created 
state  extends  to  the  river  only.”  He  then  remarks,  “  the  river,  how¬ 
ever,  is  its  boundary:”  and  Vattel,  (book  1,  ch.  22,  <§>  268,)  is  quoted 
to  shew  that  “  in  case  of  doubt,  every  country  lying  upon  a  river  is 
presumed  to  have  no  other  limits  but  the  river  itself :  because  nothing 
is  more  natural  than  to  take  a  river  for  a  boundary,  when  a  state  is  es¬ 
tablished  on  its  borders  ;  and  whenever  there  is  a  doubt,  that  is  always 
to  be  presumed  which  is  most  natural  and  probable.” 

No  comment  is  made  on  the  passage  from  Yattel.  But  I  cannot  for¬ 
bear  remarking  that  Yattel,  in  speaking  of  a  case  of  doubt,  must  have 
had  reference  to  cases  where  the  question  was  whether  the  limits  of 
the  country  extended  to  the  river,  and  not  whether  they  extended  to 
any  designated  part  or  line.  For  he  is  treating  of  the  doctrine  of  al¬ 
luvion,  and  proceeds  immediately  to  observe,  (§  269,)  that  as  soon  as 
it  is  established  that  a  river  separates  two  territories,  whether  it  remains 
common  to  each,  or  whether  each  shares  half,  or  whether  it  belongs  en¬ 
tirely  to  one ,  their  rights  with  respect  to  the  river  are  no  ways  changed 
by  the  alluvion.  He  Avas  not  considering  the  question  whether  high 
or  low  water,  or  the  middle  of  the  stream,  was  in  doubtful  cases  the 
true  boundary;  he  had  already  said  266)  that  in  such  cases  the  li¬ 
mit  was  the  centre  of  the  stream.  Nor  Avas  the  case  before  the  su¬ 
preme  court  one  of  doubt  as  regards  the  original  title  to  the  river. 
They  recognized  that  title  as  in  Virginia.  The  purpose  of  the  quota¬ 
tion  could  not  have  been  to  represent  Vattel  as  authority  for  the  doc¬ 
trine  held  by  the  court  in  establishing  Ioav  water  mark:  it  was,  proba¬ 
bly,  to  sheAv  that  Yattel  spoke,  as  the  chief  justice  had  repeatedly  done, 
of  the  river  itself  as  a  boundary,  and  to  infer  from  that  expression,  or 
from  the  doctrine  of  alluvion,  an  argument  in  favour  of  Ioav  Avater 
mark.  But  the  frequent  repetition  of  the  phrase  in  question  affords  no 
solution  of  the  difficulty.  What  is  the  extent  of  this  boundary,  the 
river  itself,  is  still  the  question  :  and  to  that  the  chief  justice  recurs  in 
a  subsequent  part  of  his  opinion. 

To  the  passage  just  cited  is  added  the  follotving,  from  a  preceding 
paragraph  of  the  same  author  on  the  subject  of  alluvion  :  “  If  the  coun¬ 
try  Avhich  borders  on  a  river  has  no  other  limits  than  the  river  itself,  it 
is  in  the  number  of  territories  that  have  natural  or  interminate  limits, 
and  enjoys  the  right  of  alluvion.”  (§  268.) 

FolloAving  up  this  idea,  the  chief  justice  says  :  “  Any  gradual  accre¬ 
tion  of  land,  then,  on  the  Indiana  side  of  the  Ohio  Avould  belong  to  In¬ 
diana ;  and  it  is  not  very  easy  to  distinguish  between  land  thus  formed 
and  land  formed  by  the  receding  of  the  Avater.  If,  instead  of  an  an¬ 
nual  and  somewhat  irregular  rising  and  falling  of  the  river,  it  was  a 
daily  and  almost  regular  ebbing  and  floAving  of  the  tide,  it  Avould  not 
be  doubted  that  a  country  bounded  by  the  river  would  extend  to  Ioav 
water  mark.  This  rule  has  been  established  by  the  common  consent 
of  mankind.  It  is  founded  on  common  convenience.” 


26 


[Doc.  No.  17.] 

Certainly,  if  the  proposition  be  correct  that  a  country  bounded  by  a 
tidewater  stream  would  without  doubt  extend  to  low  water  mark,  there 
would  be  a  strong  argument  from  analogy,  to  maintain  the  claim  to  low 
water  mark  on  a  navigable  stream  above  the  tide.  But  I  have  been 
unable  to  find  the  rule  said  to  be  so  universal,  maintained  by  any  court 
or  writer  of  authority,  prior  to  the  case  of  Handly’s  lessee  v.  Anthony. 
If  there  be  any  such,  it  seems  also  to  have  escaped  the  vigilance  of  coun¬ 
sel.  But  were  the  rule  as  stated,  on  tidewaters,  the  argument  would  rest 
solely  upon  the  reasonableness  of  applying  the  same  rule  to  navigable 
waters  above  tide,  and  not  upon  any  analogy  with  the  doctrine  of  al¬ 
luvion.  I  am  at  a  loss  to  understand  the  application  of  that  doctrine 
to  the  proposition  maintained  by  the  supreme  court.  If  the  reason 
why  Indiana  should  have  the  land  between  high  and  low  water  marks 
be  the  same  which  governs  the  right  to  alluvion,  then  it  would  seem 
to  follow  that  as  land  formed  by  gradual  accretions  would  be  lost  by 
gradual  encroachments,  so  land  gained  by  the  annual  receding  of  the 
waters  between  high  and  low  water  marks  would  be  lost  by  their  al¬ 
ternate  annual  encroachments.  But  there  is  a  plain  reason  for  the  doc¬ 
trine  of  alluvion,  wholly  unconnected  with  the  question  whether  high 
or  low  water  mark,  or  the  channel,  be  the  proper  boundary,  and  which 
forbids  its  application  to  the  diurnal  or  annual  rising  or  falling  of  all 
waters.  The  river  may  have  one  master,  the  land  beside  it  another. 
If  the  land  be  augmented,  the  increase  should  belong  to  the  land 
owner,  as  an  incident  to  the  thing  of  which  it  becomes  a  part.  If  the 
water  encroach,  it  should  belong  to  the  owner  of  the  river  in  its  aug¬ 
mented  condition,  for  the  same  reason.  But  the  doctrine  of  alluvion, 
though  applicable  to  gradual  accretions,  is  not  applicable  to  the  land  on 
tidewater,  over  which  the  tide  ebbs  and  flows ;  and  cannot  therefore, 
by  analogy,  be  applied  to  that  on  other  streams,  between  the  lines  of 
their  annual  swell  or  depression.  The  right,  if  it  exist,  must  rest  upon 
some  other  foundation :  and  accordingly  the  chief  justice,  in  this  part 
of  his  opinion,  after  dwelling  on  the  inconvenience  of  any  other  rule 
goes  on  to  say — “  Wherever  the  river  is  a  boundary  between  states,  it 
is  the  main,  the  permanent  river,  which  constitutes  that  boundary ;  and 
the  mind  will  find  itself  embarrassed  with  insurmountable  difficulties 
in  attempting  to  draw  any  other  line  than  the  low  water  mark.” 

Here  we  find  the  end  and  aim  of  the  expression,  so  frequently  re¬ 
peated,  that  the  rivet'  itself  is  the  boundary.  The  idea  attached  by  the 
chief  justice  to  the  term  river  is,  that  it  is  the  stream  only  as  it  exists 
when  at  low  water,  which  constitutes  what  he  terms  the  main  or  per¬ 
manent  river. 

I  shall  not  stop  to  comment  on  the  singularity  of  the  idea,  that  the 
river  when  it  is  reduced  to  its  smallest  dimensions — a  condition  ir 
which  it  remains  for  a  transient  period — should  be  considered  as  the 
main  or  permanent  river.  The  idea  does  not,  I  think,  enter  into  the 
mind  of  any  one  thinking  or  speaking  of  a  river  or  the  main  river,  tc 
conceive  it  as  the  stream  only  contained  between  its  lines  of  greates 
depression  ;  or  in  other  words,  as  the  stream  at  low  water  only.  Cai 
any  thing  be  meant  by  the  terms,  main  or  permanent  river,  more  thai 
the  term  river  itself  imports?  If  so,  the  term  as  usually  defined  o 


27 


[Doc.  No.  17.] 

understood  certainly  conveys  no  such  idea.  A  river  is  defined  to  be  a 
stream  of  no  precise  dimensions,  but  larger  than  a  brook:  and  it  is  that 
stream  in  all  its  conditions  and  stages ;  equally  the  river  when  reduced 
even  far  below  ordinary  low  water,  or  when  full  to  the  top  of  its  banks, 
or  even  when  swelled  by  freshes  beyond  them.  Nor  does  this  notion 
of  a  river,  on  which  the  argument  has  been  in  part  built  up,  that  it  is 
the  stream  within  the  low  water  marks,  find  any  colour  from  the  wri¬ 
ters  on  national  law.  They  tell  us,  a  river  is  not  to  be  considered  as 
so  much  water  merely,  but  as  water  flowing  in  a  particular  channel 
and  enclosed  in  certain  banks.  Grotius  De  Jure  Belli  ac  Pads ,  book 
2,  ch.  3,  $  xvii.  1.  The  water,  the  bed,  and  the  banks  all  enter  into 
the  idea  of  a  river.  The  water  alone  is  not  the  river :  we  speak  of 
the  water  of  the  river — the  bed  of  the  river,  &c.  And  the  banks,  it 
may  be  material  to  remark,  according  to  the  same  author,  (Ibid,  book 
2,  ch.  8,  <§>  ix.  1,)  are  the  outer  part  of  the  bed,  that  is  to  say,  of  the 
space  in  which  the  river  has  its  course  naturally. 

Had  the  river,  then,  eo  nomine ,  been  made  the  boundary,  with 
words  or  intention  sufficiently  explicit  to  exclude  the  state  of  Ohio 
from  going  to  the  middle  of  the  stream,  it  would  have  been  the  river, 
not  according  to  this  contracted  notion,  but  in  its  entire  state — the  river 
between  its  natural  banks;  in  other  words,  to  high  water  mark. 

This  is  so  upon  the  reason  of  the  thing,  I  think,  as  well  as  upon 
authority.  17  Mass.  Rep.  298.  For  the  bed  of  the  stream  and  its  banks 
(I  speak  now  more  particularly  of  streams  above  tidewater)  though  not 
identical,  are,  as  appears  from  Grotius,  coterminous:  and  the  boundary 
of  a  tract  of  land,  if  this  be  so,  would  be  the  same, — supposing  it  not  to 
extend  to  the  channel,  nor  to  be  expressly  limited  by  low  water  mark, — 
whether  the  boundary  were  declared  to  be  the  river  itself,  or  the  river 
margin,  or  the  bank,  which  is  its  margin. 

It  is  true  that  the  cession  does  not  declare  in  so  many  words  the 
northwestern  bank  to  be  the  boundary.  Neither  does  it  use  the  phrase 
so  repeatedly  used  in  the  opinion  under  consideration — “bounded  by 
the  river  itself  ”  It  grants  the  tract  or  territory  lying  “to  the  north¬ 
west  of  the  river.”  It  is  safer  always,  in  construing  a  deed,  to  keep 
to  its  terms  than  to  resolve  them  into  others.  Now  these  terms,  as  al¬ 
ready  said,  neither  in  conformity  with  the  law  of  Virginia,  the  com¬ 
mon  law  of  England,  nor  the  law  of  nations,  nor  according  to  their 
ordinary  signification  or  import,  are  synonymous  with  the  words  “  be¬ 
yond  loio  water  mark  on  the  northwestern  side  of  the  river.”  And  I 
humbly  conceive,  in  this  instance  the  acute  and  powerful  mind  of  the 
chief  justice,  in  the  pursuit  of  a  favourite  idea,  has  been  led  to  a  con¬ 
clusion  not  only  unsupported  by  preceding  authority,  but  seemingly  di¬ 
rectly  at  variance  with  it.  Looking  to  the  particular  phraseology,  and 
regarding  the  bed  as  part  of  the  river  up  to  its  banks,  it  would  seem  a 
strained  construction  to  say  that  land  to  the  northwest  of  low  water 
mark  is  land  lying  to  the  northwest  of  the  river.  It  is  difficult  to  un¬ 
derstand  how  any  part  of  the  river  can  be  said  to  be  to  the  northwest 
of  the  river.  We  may  say,  Wood  county  is  in  the  northwestern  part 
of  Virginia,  but  we  cannot  say  it  is  to  the  northwest  of  (or  from)  Vir¬ 
ginia. 


28 


[  Doc.  No.  17.  ] 

If  a  river  leaves  its  bed,  Yattel  (Law  of  Nations,  B.  1,  ch.  22,  $  5,) 
says  the  bed  belongs  to  the  master  of  the  river.  For  the  bed  makes 
a  part  of  the  river ,  and  he  who  had  appropriated  the  whole  had  neces¬ 
sarily  appropriated  the  parts.  If  then  the  Ohio  were  a  small  stream, 
and  should  dry  up,  or  should  change  its  channel,  the  whole  bed,  to 
the  banks,  would  revert  to  Virginia,  if  the  fact,  as  conceded  by  the 
chief  justice,  be  admitted,  that  Virginia  retained  the  river,  and  the  law 
be  as  Vattel  has  stated  it.  If  on  the  other  hand  the  law  be  as  decided 
by  the  supreme  court,  the  grant  of  the  land  on  the  northwestern  side 
extended  to  low  water  mark  notwithstanding  the  river  was  retained 
by  Virginia,  and  in  case  the  channel  should  be  deserted,  Ohio  would 
still  hold  to  low  water  mark.  Now  the  principle,  I  apprehend,  does 
not  vary  with  the  size  of  the  stream  ;  and  if  not,  it  is  difficult  to  re¬ 
concile  the  doctrine  of  the  supreme  court  with  that  of  Vattel  and 
Grotius. 

Let  us  pass  to  the  argument  founded  on  inconvenience. 

This  argument  is  rarely  resorted  to,  and  never  properly  except  in 
cases  of  great  doubt,  or  where  the  inconvenience  is  so  extreme  as  to 
raise  a  presumption  that  it  was  not  contemplated  or  intended  by  the 
parties.  In  the  latter  case  the  rule,  founded  in  reason,  obtains  not  only 
in  the  municipal  codes  probably  of  all  civilized  states,  but  in  the  law 
of  nations,  that  the  grant  of  a  thing  implies  the  grant  of  all  that  is 
essential  to  its  enjoyment ;  or,  as  it  is  expressed  by  a  modern  writer 
on  international  law,  (Wheaton,  Elements  of  International  Law,  part 
2,  ch.  4,  13,)  the  principal  right  draws  after  it  the  incidental  right 

of  using  all  the  means  necessary  to  secure  the  enjoyment  of  the  prin¬ 
cipal  right  itself.  It  is  necessary  therefore  to  enquire  whether  the  in¬ 
conveniences  suggested  or  supposed  in  this  case  are  embraced  by  the 
rule,  and  if  so,  whether  they  justify  or  require  the  remedy  applied  by 
the  supreme  court. 

The  object  of  the  cession  being  to  create  independent  states,  the 
chief  justice  suggests  that  Virginia,  in  establishing  the  river  as  a 
boundary,  must  have  had  in  view  the  convenience  of  the  future  popu¬ 
lation  ;  and  afterwards  observes — “  Even  when  a  state  retains  its  do¬ 
minion  over  a  river  which  constitutes  the  boundary  between  itself  and 
another  state,  it  would  be  extremely  inconvenient  to  extend  its  domi¬ 
nion  over  the  land  on  the  other  side  which  was  left  bare  by  the  re¬ 
ceding  of  the  water.”  This  may  be  true.  But  the  question  here  is 
not  whether  such  dominion  retained  by  Virginia  would  be  convenient 
or  inconvenient  to  the  states  on  the  opposite  side  of  the  river,  but 
whether  she  had  the  right  to  retain  it,  and  if  so,  whether  that  be  the 
true  construction  of  her  grant  ?  Or,  more  definitely,  are  the  inconve¬ 
niences  such  as  to  warrant  the  presumption  that  Virginia,  in  granting 
the  territory  “  to  the  northwest  of  the  river,”  meant  that  it  should  ex¬ 
tend  into  the  river  to  low  water  mark  ? 

What  inconveniences  were  in  the  view  of  the  court,  we  are  not  told. 
In  the  argument  of  the  present  case,  the  counsel  for  the  defendants 
presented  them  in  detail,  and  made  them  the  subject  of  an  earnest 
appeal.  These  alleged  inconveniences  are  substantially  as  follows: 


29 


[Doc.  No.  17.] 

That  all  contracts  entered  into,  all  matters,  indeed,  civil  or  criminal, 
occurring  on  the  Ohio  side  between  high  and  low  water  mark,  (if  high 
water  mark  be  established  as  the  boundary)  will  be  beyond  the  cogni¬ 
zance  of  the  courts  of  Ohio,  and  within  the  jurisdiction  of  Virginia. 

That  the  possession  of  the  soil  between  high  and  low  water  is  es¬ 
sential  to  Ohio,  not  only  for  purposes  of  police,  but  to  enable  her  citi¬ 
zens  to  have  free  access  to  the  river,  to  erect  wharves,  steam  mills,  &c. 

And  that  if  the  soil  between  those  lines  be  in  Virginia,  land  war¬ 
rants,  under  her  authority,  may  be  laid  upon  the  river  shore  on  the 
whole  line  of  the  state  of  Ohio. 

Were  all  these  inconveniences  as  real  as  I  apprehend  they  are  for 
the  most  part  imaginary,  would  it  follow  that  Virginia  might  not  have 
imposed  them  as  the  condition  of  her  grant  ?  If  they  exist,  they  re¬ 
sult  from  the  fact  that  Virginia  retained,  as  the  supreme  court  admits, 
;he  river  to  herself;  and  so  far  at  least  as  they  are  not  incompatible 
with  the  enjoyment  of  the  thing  granted, — the  land  to  the  northwest  of 
;he  river, — no  court  has  power  to  apply  a  remedy,  and,  with  a  view  to 
convenience  merely,  enlarge  the  boundary  of  the  one  state  or  contract 
that  of  the  other. 

Even  if  the  case  were  one  of  greater  doubt ;  if  the  terms  of  the 
cession,  expounded  according  to  their  legal  or  natural  import,  did  not 
confine  the  grant  to  the  northwestern  margin  or  bank  of  the  river, 
there  would  be  a  strong  presumption  against  its  extension  to  low 
water  :  and  that  presumption  would  be  irresistible,  if  such  extension 
be  attended  with  inconvenience  to  Virginia,  and  be  not  indispensable 
to  the  full  enjoyment  of  the  principal  rights  granted  to  Ohio.  Vattel 
says  that  “a  river  is  of  such  great  use,  that  when  a  nation  takes  posses¬ 
sion  of  a  country  terminated  by  a  river,  it  is  to  be  presumed  to  have 
intended  to  reserve  the  river  to  itself.  This  presumption  is  indisputa¬ 
ble  when  it  relates  to  a  river  extremely  large,  and  the  strength  of  the 
presumption  increases  if  the  river  be  confined  ;  and  is  still  greater  if 
the  nation  has  used  the  river  for  navigation  or  fishing.”  Now  would 
aot  the  reasons  for  presuming  a  reservation  originally,  in  derogation  of 
the  claims  of  those  who  might  thereafter  settle  on  the  opposite  side, 
forbid  a  presumption  in  a  doubtful  case  that  the  original  owner  intend¬ 
ed  to  surrender  any  part  of  the  river  ?  Such  certainly  would  be  the 
presumption  in  the  case  of  a  grant  to  individuals  of  lands  upon  the 
sea-shore  (see  3  Kent’s  Comm.  432,  citing  the  authority  of  sir  William 
Scott):  and  the  reason  of  the  presumption  equally,  I  think,  if  not 
more  strongly,  applies  to  grants  upon  all  navigable  streams  to  other 
states.  The  reservation  of  the  river  is  pro  bono  publico.  So  strong  is 
the  inference  against  a  grant  of  its  bed  or  shores,  that  it  has  been 
ioubted  whether  the  legislature  or  the  state  could  grant  them  away. 
4  Call  R.  441,  Home  v.  Richards.  Such  grants  (as  already  mention¬ 
ed)  have  been,  before  the  cession,  if  not  from  a  very  early  period,  pro¬ 
hibited  by  statute  in  Virginia.  I  will  add,  that  almost  from  the  first 
settlement  of  the  state,  laws  were  passed,  in  substance  repeatedly  re¬ 
enacted,  and  continued  in  force  down  to  the  present  day,  prohibiting 
all  obstructions  in  the  navigable  waters  of  the  commonwealth.  Act 
of  1680,  2  Hen.  Stat.  484.  Act  of  1705,  3  Id.  395.  Act  of  1722,  4  Id. 


30 


[Doc.  No.  17.] 

111.  2  R.  C.  of  IS  19,  ch.  235,  ■§>  17-18.  Is  it  not  reasonable  to  infer 

that  for  the  same  reason,  the  prevention  of  all  impediments  to  naviga¬ 
tion,  a  state  in  possession  of  a  large  navigable  stream  might  desire  to 
retain  it  to  itself,  and  with  it  the  lawful  right  to  remove  such  impedi¬ 
ments  ? 

But  here  we  are  not  left  to  conjecture.  It  was  an  admitted  fact  in 
the  case  before  the  supreme  court,  that  Virginia  had  retained  the 
river  :  and  the  court,  by  construction,  held  that  to  mean  the  river, 
not  in  its  entire  state  from  bank  to  bank,  but  from  low  water  mark 
on  one  side  to  the  same  line  on  the  other. 

But  have  not  the  inconveniences  to  Ohio  been  greatly  overrated  ? 

As  riparian  owner,  bounded  by  the  high  water  mark,  I  apprehend 
she  is  clearly  entitled  under  the  cession  to  claim  for  her  citizens  free 
access  at  all  times  to  the  river,  the  right  to  erect  wharves,  and  in  ge¬ 
neral  to  the  innocent  use  of  the  water ;  by  which  I  understand  is 
meant  every  use  not  inconsistent  with  the  safety  and  convenience  of 
the  state  owning  the  river  opposite  to  her  territory,  and  of  other  states 
entitled  to  its  free  navigation.  Grotius,  B.  2,  ch.  2,  $  12-14,  and  ch. 
3,  $  7-12.  Vat  tel,  B.  2,  ch.  9,  <§>  126-130,  and  ch.  10,  <§>  132-134. 
3  Kent’s  Comm.  427.  Wheaton’s  Elements,  part  2,  ch.  4,  <§>  12.  Steam 
mills  or  other  engines,  I  suppose,  would  fall  under  the  same  rule.  But 
if  the  effect  of  placing  these  between  high  and  low  water  mark  would 
be  to  obstruct  the  free  navigation  when  the  river  should  be  full,  I  pre¬ 
sume  Ohio  would  have  no  right  to  erect  them,  and  the  supreme  court 
could  not  extend  her  right  to  low  water  mark  for  a  purpose  so  injurious 
to  the  original  owner  of  the  river,  and  so  incompatible  with  the  inten¬ 
tion  of  the  grant.  So  far  it  seems,  for  any  lawful  purpose,  the  owner¬ 
ship  of  the  soil  is  not  essential  to  Ohio.  To  ask  it  for  any  other,  would 
be  an  unanswerable  argument  against  it. 

Does  she  require  it,  then,  for  purposes  of  police;  for  the  cognizance 
of  crimes  or  contracts  properly  or  of  right  subject  to  her  laws? 

Looking  to  the  objects  of  the  cession,  the  grant  of  an  extensive  ter¬ 
ritory  to  be  formed  into  states,  it  must  be  readily  admitted  that  all 
means  essential  to  the  existence  of  the  states  and  the  maintenance  of 
their  laws  within  their  territorial  limits,  pass  with  the  grant.  But  we 
cannot  extend  the  inference  beyond  the  necessity.  We  cannot  infer 
jurisdiction  beyond  the  territorial  limits:  still  less  can  we  extend  the 
territory  beyond  its  prescribed  limits,  in  order  to  bring  the  jurisdiction 
within  them.  Supposing  jurisdiction  over  the  space  between  high  and 
low  water  essential  to  the  full  enjoyment  of  the  principal  rights  grant¬ 
ed,  still  we  have  no  right  to  presume  an  intention  to  grant  the  soil,  un¬ 
less  the  soil  be  indispensable  to  the  exercise  of  jurisdiction.  It  may 
be  convenient  to  Ohio  to  possess  the  soil  to  low  water  mark, — or  to  the 
middle  of  the  channel,  with  half  the  bed  and  islands  of  the  river  (which 
indeed  the  counsel  for  the  defendants  appear  to  regard  as  rightfully 
hers):  but  as  a  convenience  merely,  we  have  no  right  to  presume  it. 
Courts  must  expound  contracts,  but  may  not  alter  them.  And  on  the 
ground  of  necessity,  the  presumption,  I  think,  cannot  be  authorized  ; 
because  the  requisite  jurisdiction  may  be  exercised  without  the  posses¬ 
sion  of  the  soil.  That  the  soil  or  domain  may  be  in  one  state,  and  ju- 


31 


[Doc.  No.  17.] 

isdiction,  concurrent  or  exclusive,  in  another,  can  admit  of  no  doubt. 
Mattel,  B.  1,  ch.  18,  $  105 — ch.  23,  $  295 — ch.  24,  <§>  244.  Within 
:ertain  limits,  the  United  States  possess  jurisdiction  over  all  the  states  : 
re t  the  states  possess  the  soil  or  domain.  The  most  then  that  could 
)e  justly  presumed  in  conformity  with  the  principle  that  gives  as  inci- 
lental  to  a  grant  all  that  is  necessary  to  its  enjoyment,  would  be  juris- 
liction  over  the  space  in  question,  and  not  the  soil  itself. 

Independently  of  the  legal  presumption  under  the  principle  just  ad¬ 
verted  to,  the  attention  of  the  court  has  been  called  to  a  clause  in  the 
ict  of  Virginia  creating  the  state  of  Kentucky ;  which  declares  that 
he  respective  jurisdictions  of  Virginia  and.  Kentucky  shall  he  concur- 
'ent  only  with  the  states  that  may  possess  the  opposite  shores.  On  this 
dause  two  questions  have  arisen:  First,  What  is  meant  by  the  phrase 
1  concurrent  jurisdiction  ?”  Secondly,  In  what  sense  did  that  act  speak 
)f  the  new  states  as  possessing  the  shores  opposite  to  Virginia? 

It  is  not  necessary  perhaps,  and  therefore  would  not  be  proper,  to 
:xpress  any  decided  opinion  in  the  present  case  touching  the  construc- 
ion  of  the  act  referred  to.  If  the  terms  “concurrent  jurisdiction”  im¬ 
port,  as  some  suppose,  and  as  would  seem  to  be  their  natural  significa- 
ion,  coextensive  or  equal  jurisdiction,  then  it  entirely  obviates  the  ob- 
ection  we  have  been  considering;  since,  upon  that  supposition,  Ohio 
possesses  by  express  grant  plenary  jurisdiction,  not  over  the  space  in 
question  merely,  but  over  the  whole  river  for  all  purposes  for  which 
;he  could  reasonably  or  lawfully  desire  it.  If  this  construction  be  cor¬ 
rect,  the  consequence,  that  it  may  authorize  Ohio  to  exercise  jurisdic- 
ion  to  the  high  water  mark  on  the  Virginia  side,  may  be  a  matter  of 
Serious  consideration  with  Virginia,  but  can  afford  no  foundation  for  a 
:laim  on  the  part  of  Ohio  to  any  portion  of  the  bed  of  the  stream. 
S’or  does  the  danger  of  conflict  in  the  exercise  of  this  concurrent  juris- 
liction  disprove  its  existence.  Should  such  conflict  arise,  the  difficulty 
:an  only  be  adjusted  by  the  laws  which  govern  cases  of  conflicting 
urisdiction  between  sovereign  states,  or  by  amicable  conventions.  I 
:annot  concur  in  the  idea,  however,  that  the  right  of  free  navigation 
Secured  to  all  the  citizens  of  the  United  States  gives  to  the  other  states 
>f  the  Union  jurisdiction  over  the  river.  If  such  were  the  effect,  it 
vould  have  been  very  useless  to  give  or  retain  concurrent  jurisdiction 
o  the  border  states  in  the  act  creating  the  state  of  Kentucky.  Virgi¬ 
nia  must  have  thought,  that  owning  the  river,  she  had  a  right  to  grant 
|)r  restrict  jurisdiction  over  it  as  she  might  think  proper.  Free  navi¬ 
gation  over  a  river  belonging  to  one  state  implies  no  right  of  jurisdic- 
ion  in  any  other.  Whatever  may  be  the  extent  of  the  jurisdiction 
upposed  to  be  conferred  on  or  retained  by  the  border  states,  it  is  con- 
ined  exclusively  to  them :  and  the  grant,  upon  the  supposition  that 
he  above  is  a  correct  interpretation,  was  obviously  regarded  by  Virgi- 
lia  as  limiting  or  dividing  her  otherwise  absolute  and  unbounded  em- 
>ire  over  the  river  within  the  limits  of  her  territory. 

If  any  claim  then  be  set  up  for  Ohio  under  this  part  of  the  act 
reating  Kentucky,  it  must  be  one  for  jurisdiction, — concurrent  juris- 
liction  only, — and  not  soil.  Nor  does  the  latter  part  of  the  same  clause 
which  speaks  of  the  jurisdiction  of  Virginia  and  Kentucky  as  concur- 


32 


[  Doc.  No.  17.  ] 

rent  with  the  states  that  may  possess  the  opposite  shores)  justify,  in  my 
opinion,  the  use  or  the  interpretation  made  of  it.  The  term  shores,  it 
is  said,  is  the  ground  between  ordinary  high  and  low  water  mark.  In 
speaking  of  the  northwestern  states,  then,  as  owners  of  the  shores,  Vir¬ 
ginia  is  supposed  to  have  used  the  term  in  this  sense,  and  thereby  ad¬ 
mitted  the  soil  to  be  in  those  states.  It  does  not  seem  regular  or  pro¬ 
per  to  lay  hold  of  the  expressions  of  an  instrument  between  other  par¬ 
ties  to  explain  the  deed  of  cession, — to  which  it  makes  no  reference. 
Technically  the  term  shores  is  applicable  only  to  the  sea  or  tidewater. 
But  most  obviously  it  was  used  here  in  its  more  extended  sense,  as 
synonymous  with  the  term  more  appropriate  to  rivers — namely,  banks. 
And  so  regarded,  as  it  must  be,  the  phrase  means  nothing  more  than  to 
describe  or  refer  to  the  states  in  question  as  possessors  of  the  opposite 
banks,  or  rather  of  the  territory  lying  on  or  bounded  by  them.  In 
this  sense  the  chief  justice  himself,  who  refers  to  the  expression,  but 
without  putting  this  technical  construction  upon  it,  most  probably  un¬ 
derstood  it.  He  lays  some  stress  upon  the  term  shores ;  but  all  he 
says  is,  “  This  term  seems  to  be  a  repetition  of  the  idea  under  which 
the  cession  was  made.  The  shores  of  a  river  border  on  the  water’s 
edge.”  This  is  certainly  true,  and  corresponds  with  definitions  before 
quoted  from  Grotius — “  The  river  is  the  stream  between  certain  banks;” 
and  “  The  banks  are  the  outer  part  of  the  bed,  that  is,  the  space  in 
which  the  river  has  its  course  naturally.”  And  the  bed  is  that  space 
at  all  times,  whether  actually  covered  with  water  or  not. 

But  if  the  term  is  to  be  expounded  in  its  technical  sense  when  ap¬ 
plied  to  streams  of  a  different  description,  still  it  cannot  be  interpreted 
to  enlarge  the  grant  specially  made  by  the  act.  That  grant  is  specially 
one  of  jurisdiction  only.  And  even  if  it  could  be  strained  into  a  con¬ 
cession  of  soil,  yet  Virginia  retained  to  herself  and  Kentucky  concur¬ 
rent  jurisdiction  over  the  river,  the  entire  river,  in  all  its  stages. 

Neither,  then,  under  that  act  nor  under  the  cession  can  any  surren¬ 
der  of  the  soil  be  presumed.  Where  incidental  rights  are  to  be  infer¬ 
red  in  a  doubtful  case,  all  the  rights  of  the  original  possessor  should 
be  left  unimpaired,  not  essential  to  the  enjoyment  of  the  rights  gran¬ 
ted.  The  justice  of  this  principle  will  not  be  denied.  Jurisdiction 
being  all  that  was  required,  jurisdiction  only  should  be  presumed.  Nor 
does  there  seem  to  be  a  reason  or  principle  justifying  an  extension  of 
the  right  over  the  soil  to  low  water  mark  on  the  northwestern  side,  for 
the  sake  of  jurisdiction,  which  would  not  carry  it  to  the  same  line  on 
the  southeast,  or  at  least  ad  medium  filum  aquai. 

But  has  any  serious  ground  of  complaint  on  this  subject  of  jurisdic¬ 
tion  been  shewn  to  the  court?  Has  not  Ohio,  at  all  times  prior  to  the 
case  of  Handley’s  lessee  v.  Anthony,  and  since,  exercised  all  the  juris- 
tion  she  desired  over  the  river,  and  especially  over  the  space  between 
high  and  low  water?  On  the  other  hand  has  Virginia,  at  anytime 
previous  to  the  case  now  before  us,  exerted  her  jurisdiction  in  a  way  to 
induce  any  complaint  ?  Is  there  any  real  danger  that  she  will  ever 
covet  a  jurisdiction  so  inconvenient  and  vexatious;  or  that  individuals 
having  access  to  the  courts  of  Ohio  will  go  across  the  river  to  Virginia, 
to  obtain  process  which  the  party  complained  of  may  instantly  and 
forever  elude  or  defy  ? 


33 


[Doc.  No.  17.] 

Nor  does  there  seem  to  be  much  reason  to  apprehend  danger  from 
grants  by  Virginia  of  the  space  between  low  water  and  the  banks  of 
the  river.  In  sixty  years  no  such  grant  has  been  made.  All  such 
grants  on  all  the  western  waters  are  expressly  prohibited  by  her  statute 
law;  and  if  not,  would  be  contrary  to  her  own  interest,  as  well  as  a 
flagrant  violation  of  her  compacts,  securing  the  free  navigation  of  the 
river  to  all  the  citizens  of  the  Union. 

This  argument,  from  abuse  moreover,  if  it  were  sound,  surely  would 
apply  with  equal  force  to  the  one  state  as  to  the  other.  If  the  domain 
when  retained  by  Virginia  may  lead  to  such  consequences,  may  they 
not  ensue  from  vesting  it  in  Ohio  ?  Are  we  to  infer  abuse  of  power 
over  the  soil  by  one  state,  its  ancient  possessor,  and  for  that  reason 
transfer  the  same  power  to  another  ? 

Virginia  and  all  the  states  have  at  least  the  right  of  use  and  naviga¬ 
tion.  With  these  rights,  whatever  may  be  the  doctrine  of  the  com¬ 
mon  law  (which  is  not  obligatory  upon  states),  that  of  the  law  of  na¬ 
tions,  I  apprehend,  gives  the  incidental  right  of  using  the  banks,  for 
mooring  vessels,  lading  and  unlading  cargoes  &c.  Wheaton’s  Ele¬ 
ments  of  International  Law,  part  2,  ch.  4,  §  13,  citing  Grotius,  Vattel 
and  Puffendorff.  If  Virginia  may  lawfully  exclude  Ohio  from  access  to 
and  just  use  of  the  river,  as  seems  to  be  thought,  by  holding  the  soil 
between  high  and  low  water,  may  not  Ohio,  if  she  be  its  owner,  as 
lawfully  exclude  Virginia  from  the  use  of  the  banks  ?  And  is  it  not  as 
necessary  that  the  one  should  have  the  lawful  power  to  prevent  such 
abuses  or  injuries  as  the  other? 

If  it  were  legally  possible  that  Virginia  could  grant  the  soil  in  ques¬ 
tion  to  individuals,  still  she  could  grant  it  only  in  subservience  to  the 
just  rights  of  Ohio, — free  access,  and  uninterrupted  use  and  navigation. 

In  sustaining  the  instruction  of  the  court  below,  that  low  water 
mark  was  the  line  of  demarcation,  the  chief  justice,  recurring  to  the 
fixed  impression  upon  his  mind  that  a  boundary  by  the  river  was  some¬ 
thing  wholly  different  from  one  by  its  banks,  proceeds  to  say — “If  it 
be  true  that  the  river  Ohio,  not  its  ordinary  bank,  is  the  boundary  of 
Indiana,  the  limits  of  that  state  can  be  determined  only  by  the  river 
itself.”  But  the  idea  that  a  boundary  by  the  river  excludes  a  boun¬ 
dary  by  the  bank,  so  far  from  being  sanctioned,  is  at  variance  with  all 
authority :  and  the  repetition  of  the  phrase  only  brings  us  back  to  the 
brink  of  the  difficulty.  “  The  same  tract  of  land,”  he  adds,  “  cannot 
be  sometimes  in  Kentucky  and  sometimes  in  Indiana.  It  must  be  al¬ 
ways  in  the  one  state  or  the  other.”  I  will  not  stop  to  enquire  whether, 
in  a  legal  sense,  it  is  impossible  that  the  same  land  should  be  some¬ 
times  in  one  state  and  sometimes  in  another.  There  is  such  a  thing, 
it  is  said  upon  very  high  authority,  as  a  movable  freehold,  and  an  ex¬ 
ample  is  given  of  a  possession  alternis  vicibus.  Co.  Litt.  48  b,  cited  in 
3  Kent’s  Comm.  431.  4  Barn.  &  Cress.  485.  Supposing  ordinary  low 
water  adopted  as  the  boundary,  the  land  between  that  and  extraordi¬ 
nary  low  water  must  be  sometimes  in  the  one  state  and  sometimes  in 
the  other,  held  by  them  alternis  vicibus ,  or  it  must  belong  to  Ohio 
upon  every  reason  which  sustains  her  right  to  ordinary  low  water.  For 
if  given  to  Virginia,  it  leaves  Ohio,  for  the  time  being,  liable  to  all  the 
5 


34 


[  Doc.  No.  17.] 

inconveniences  supposed  to  arise  from  vesting  in  the  former  the  space 
between  ordinary  low  water  and  the  bank  ;  though  certainly  for  a 
shorter  time,  and  to  a  less  extent.  But  supposing  the  land  cannot 
sometimes  belong  to  one  and  sometimes  to  another,  by  no  means  proves 
it  must  of  necessity  belong  to  Ohio.  Access,  the  innocent  use  and  free 
navigation  of  the  river  and  jurisdiction,  are  all  that  Ohio  can  want  or 
have  under  the  cession.  Let  it  be  inferred,  if  concurrent  jurisdiction 
be  not  enough,  that  her  jurisdiction  is  exclusive  over  the  space  in  ques¬ 
tion  when  left  bare,  and  concurrent  with  that  of  Virginia  when  covered 
by  the  water,  and  there  is  no  need  to  strain  the  construction  so  as  to 
give  her  the  right  of  soil.  If  the  objection  be  sound  that  the  soil  can¬ 
not  belong  alternately  to  each,  yet  surely  the  jurisdiction  may.  The 
courts  of  common  law  and  admiralty  exercise  alternate  jurisdiction 
under  similar  circumstances  over  the  space  upon  which  the  tide  ebbs 
and  flows :  and  I  discern  no  reason  why  this  divisum  imperium  may 
not  be  exercised  also  by  independent  states. 

“  There  would  be  little  difficulty,”  the  chief  justice  proceeds,  “  in 
deciding  that  in  any  case  other  than  land  which  was  sometimes  an  is¬ 
land,  the  state  of  Indiana  would  extend  to  low  water  mark.  Is  there 
any  safe  or  secure  principle  on  which  we  can  apply  a  different  rule  to 
land  which  is  sometimes,  though  not  always,  surrounded  by  water?” 
Certainly  not.  The  conclusion  would  be  undeniable  were  the  premi¬ 
ses  correct.  But  they  are  a  plain  assumption  of  the  very  question  in 
issue.  Assuming  that  low  water  was  the  boundary  all  along  the  main 
land,  terminated  the  case.  Could  that  have  been  shewn  upon  autho¬ 
rity,  the  arguments  from  analogy,  inconvenience,  or  possible  abuse, 
might  all  have  been  well  spared. 

After  shewing  that  the  cases  of  an  island  and  of  the  main  land 
were  within  the  same  reason,  and  pointing  out  the  inconvenience  of 
regarding  the  people  inhabiting  a  neck  of  land  separated  from  Indiana 
by  a  bayou  or  ravine,  but  from  Kentucky  by  the  river  Ohio,  as  a  part 
of  the  last  mentioned  state,  and  likening  it  to  the  case  of  the  inhabi¬ 
tants  of  a  strip  of  land  along  the  whole  extent  of  the  Ohio,  considered 
as  part  of  the  state  on  the  opposite  shore,  the  chief  justice  adds,  “Nei¬ 
ther  the  one  nor  the  other  can  be  considered  as  intended  by  the  deed 
of  cession.” 

I  will  not  suppose  that  this  remark  was  meant  by  anticipation  to 
settle  the  question  of  boundary  between  Ohio  and  Virginia.  In  speak¬ 
ing  of  a  slip  of  land  containing  inhabitants ,  the  chief  justice  could 
not  well  have  meant  the  slip  between  low  and  high  water.  I  pre¬ 
sume  it  was  meant  as  an  illustration  only,  to  shew  that  the  same  in¬ 
convenience  would  result  to  the  inhabitants  of  an  island  such  as  that 
before  the  court,  as  to  those  of  the  main  land.  He  then  expresses  the 
opinion  that  “if  a  river  subject  to  tides  constituted  the  boundary  of  a 
state,  and  at  flood  the  water  flowed  through  a  narrow  channel  round 
an  extensive  body  of  land,  but  receded  from  that  channel  at  ebb,  so  as 
to  leave  that  land  connected  with  the  main  body  of  the  country,  this 
portion  would  scarcely  be  considered  as  belonging  to  the  state  on  the 
opposite  shore,  although  that  state  should  have  the  property  of  the  ri¬ 
ver.”  It  is  always  diflicult  to  pronounce  what  would  be  the  law  of  a  sup- 


35 


[  Doc.  No.  17.  ] 

posed  case;  and  never  safe  to  do  so  without  a  precise  enumeration  of 
all  the  facts  necessary  to  a  correct  judgment.  But  when  in  the  next 
breath  the  chief  justice  speaks  of  the  principle  that  a  country  bounded 
by  a  river  extends  to  low  water  mark,  as  one  so  natural  and  of  such 
obvious  convenience  as  to  have  been  generally  adopted,  I  must  with 
the  most  unfeigned  respect  acknowledge  my  surprise ;  unless  his  allu¬ 
sion  be  to  conventional  arrangements.  What  these  may  have  been,  I 
have  not  deemed  it  necessary  to  examine.  They  can  have  no  influ¬ 
ence  on  the  question  before  us.  Where  compacts  exist,  they  of  course 
define  the  rights  of  the  parties.  Modus  et  conventio  vincunt  legem. 
But  if  the  remark  be  intended  to  represent  the  low  water  mark  as  the 
boundary  established  by  law  where  there  is  no  treaty  or  compact,  or 
where  the  terms  of  the  compact  are  doubtful,  and  one  of  the  states 
was  the  original  possessor  of  the  whole  river,  all  I  can  say  is  that  I 
have  not  been  fortunate  enough  to  find  the  case  or  the  author  that 
maintains  it. 

“The  case,”  he  tells  us  immediately  after,  “is  not  without  its  dif¬ 
ficulties:  but  in  great  questions  which  concern  the  boundaries  of 
states,  where  great  natural  boundaries  are  established  in  general  terms, 
with  a  view  to  public  convenience  and  the  avoidance  of  controver¬ 
sy,  we  think  the  great  object,  where  it  can  be  distinctly  perceived, 
ought  not  to  be  defeated  by  those  technical  perplexities  which  some¬ 
times  influence  the  contracts  between  individuals.”  Surely  if  the 
principle  generally  adopted,  as  the  chief  justice  supposes,  recognizes 
low  water  mark  as  the  boundary  of  countries  bounded  by  a  river, 
there  was  no  difficulty  in  deciding  that  the  case  before  the  court  came 
within  it.  I  concur  entirely  in  the  justice  of  the  remark  that  not  in 
great  cases  only,  but  in  all  cases,  ought  the  real  object  of  the  parties 
to  be  protected  against  technical  exceptions.  But  neither  ought  new 
or  arbitrary  rules  to  be  laid  down  because  of  the  magnitude  of  the 
case.  Were  that  allowable,  the  judgments  of  courts,  like  the  waters 
of  the  great  stream  which  have  been  so  much  the  subject  of  discus¬ 
sion,  would  indeed  often  transcend  their  proper  limits,  and  become  as 
uncertain  as  the  evanescent,  vacillating,  unmarked  and  unknown  line 
which  contains  its  waters  at  the  period  of  its  utmost  or  ordinary  de¬ 
pression. 

!  I  have  gone  through  with  the  examination  of  the  case  of  Handley’s 
lessee  v.  Anthony.  I  am  aware  it  must  seem  unnecessarily  prolix. 
But  I  prefer  to  encounter  that  censure,  rather  than  be  supposed  to  have 
passed  without  the  maturest  consideration  any  one  of  the  views,  how¬ 
ever  minute,  which  led  the  profound  and  acute  minds  of  the  chief 
justice  and  his  associates  to  the  conclusions  they  adopted.  It  was  due 
to  myself  to  explain  the  grounds  upon  which  I  have  ventured  to  differ 
with  those  learned  and  eminent  judges:  and  I  cannot  but  hope  they 
are  such  as,  if  not  sufficient  to  satisfy  the  minds  of  others,  will  at 
least  afford  some  reasonable  foundation  for  my  own  deep  and  sincere 
conviction  that  the  judgment  in  question  is  unsustained  by  principle 
or  authority.  Not  only  so — it  has  already  perhaps  led  to  most  anoma¬ 
lous  results.  The  law  of  boundary,  the  rights  of  riparian  owners,  are 
one  thing  on  the  southeastern  side  of  the  Ohio  river,  and  another  on 


36 


[  Doc.  No.  17.  ] 

the  northwestern  :  stranger  yet,  in  the  same  state,  the  state  of  Ohio, 
the  law  of  the  great  river  which  borders  her  territory  is  not,  if  I  cor¬ 
rectly  understand  the  decisions  of  her  courts,  the  law  of  rivers  in  the 
interior  of  the  state.  3  Ohio  Rep.  495.  The  law  of  the  Ohio  is  not 
the  law  of  the  Sandusky  or  the  Scioto. 

It  must  be  admitted  that  the  question  is  not  without  its  difficulties: 
and  it  may  be  thought  any  other  boundary  would  be  as  open  to  objec¬ 
tion  as  that  by  the  low  water  mark.  I  think  not.  Were  all  others  in 
every  other  respect  equally  objectionable,  there  is  one  objection  to  low 
water  mark  to  which  the  others  contended  for  are  not  liable;  namely, 
that  no  principle  of  law  as  adjudged  or  settled  upon  authority,  before 
the  case  of  Handley’s  lessee  v.  Anthony,  has  been  adduced  or  is  known 
to  have  recognized  it.  But  high  water  mark,  besides  the  weight  of 
authority  in  its  favour,  is  less  exceptionable  on  the  ground  of  uncer¬ 
tainty  ;  and  the  actual  edge  of  the  water  at  all  times  not  only  less  un¬ 
certain,  but  one,  in  my  view,  of  entire  certainty.  Neither  the  lowest 
point  of  depression,  nor  ordinary  low  water,  which  always  occur  in 
the  summer  or  fall,  can  ever  be  known  till  those  seasons  have  passed. 
Suppose  these  lines  once  ascertained,  they  may  undergo  annual  and 
daily  changes,  and  may  and  must  be  speedily,  perhaps  the  next  day  or 
hour,  concealed  if  not  obliterated  for  the  residue  of  the  year.  Not  so 
with  the  high  water  mark.  That,  once  ascertained,  may  be  more  rea¬ 
dily  verified ;  the  receding  waters  leaving  it  accessible  until  in  their 
annual  return  they  shall  again  attain  it.  But  the  actual  edge  of  the 
water  requires  no  witness.  It  testifies  for  itself :  and  whether  a  given 
transaction  occurred  within  or  beyond  it,  all  must  know  who  were 
witnesses  to  the  occurrence  itself. 

With  a  very  strong  impression  upon  my  mind  that  this  last  would 
be  the  more  convenient  boundary,  but  that  high  water  mark  is  most  in 
accordance  with  the  law,  I  forbear  to  give  any  decided  opinion  between 
them ;  because,  in  my  view,  it  is  not  necessary  in  answer  to  the  ques¬ 
tions  adjourned.  If  the  latter  be  the  true  boundary,  then  the  place  in 
which  the  offences  are  found  to  have  been  committed  was  within  the 
jurisdiction  of  Virginia,  clearly :  and  so  I  think  it  is  if  the  edge  of  the 
river,  wherever  it  may  be,  give  the  rule ;  making  a  case  of  divisum 
imperium,  or  giving  to  Ohio  alternate  and  even  exclusive  jurisdiction 
when  the  water  recedes.  I  cannot  concur  in  the  opinion  of  some  of 
my  brethren,  that  the  circumstance  that  the  bow  of  the  canoe,  in  which 
the  slaves  were,  was  at  the  time  on  the  beach  at  the  water-edge,  or 
that  the  defendants  who  went  down  to  assist  them  were  standing  in 
the  water  at  the  bow,  and  consequently  on  the  ground  beneath,  are 
sufficient,  if  the  jurisdiction  of  Virginia  extended  at  all  times  to  the 
water-edge, — to  oust  her  of  that  jurisdiction.  The  idea  seems  founded 
upon  Constable’s  case,  or  other  authority  to  the  effect  that  all  things 
attached  to  shores,  up  to  which  the  admiralty  courts  have  jurisdiction, 
are  regarded,  for  the  reason  that  they  are  so  attached,  as  within  the 
jurisdiction  of  the  courts  of  common  law.  5  Co.  Rep.  107.  Even 
this  authority  does  not  go  to  the  extent  that  articles  lodged  elsewhere, 
on  a  rock,  or  on  the  soil  of  this  contested  ground  between  high  and 
low  water,  would  not  be  within  the  admiralty  jurisdiction.  But  the 


37 


[Doc.  No.  17.] 

authority  referred  to  relates  to  a  question  of  controverted  jurisdiction 
between  the  English  courts  of  common  law  and  admiralty.  It  is  the 
opinion  of  common  law  judges, — of  Coke  especially,  whose  authority 
in  such  cases  has  been  seriously  doubted  on  account  of  his  known  hos¬ 
tility  to  the  admiralty  courts.  It  can  afford  no  rule  for  settling  a  question 
of  contested  jurisdiction  between  sovereign  states.  The  rule  between 
equals  admits  of  no  preference  on  the  ground  of  superior  pretension,  in 
cases  of  equal  right  or  divided  empire.  The  principle  so  often  adverted 
to,  that  the  incident  would  go  with  the  principal  right,  would  give  the 
rule.  Each  party  would  have  jurisdiction  to  his  limit;  he  could  have  no 
power  to  step  beyond  it.  If  an  article  of  property  belonging  to  the  owner 
of  the  soil  should  fall  partly  in  the  water,  it  would  belong  to  its  original 
owner :  at  most,  the  owner  of  the  water  could  not  claim  beyond  his 
line.  So  if  a  boat  belonging  to  the  latter  touch  or  moor  against  the 
bank,  the  same  rule  would  apply :  it  would  still  be  the  property  of  its 
owner,  the  master  of  the  river.  Or,  supposing  each  to  have  in  this 
case  equal  and  concurrent  jurisdiction,  that  first  exercised  would  have 
the  preference.  The  distinction,  to  say  the  least,  is  one  extremely 
subtle ;  too  much  so,  perhaps,  to  be  made  the  subject  of  grave  discus¬ 
sion.  Certainly,  but  for  the  high  respect  I  entertain  for  those  of  my 
brethren  who  seem  to  favour  it,  and  the  belief  that  it  has  had  great  in¬ 
fluence  in  producing  the  present  judgment,  I  should  have  passed  it 
without  a  comment.  We  cannot  easily  reconcile  with  reason  or  con¬ 
venience  the  notion  that  an  offender  who  commits  a  murder  in  a  boat 
between  high  and  low  water  would  be  within  the  jurisdiction  of  Vir¬ 
ginia,  but  exempt  from  that  jurisdiction  if,  at  the  same  spot,  he  was 
not  on  the  surface  of  the  water  but  standing  on  the  ground  beneath  it. 
This  would  indeed  be  to  defeat  a  great  object  by  a  technical  subtlety, 
which,  if  recognized  by  the  common  law,  is  certainly,  I  apprehend, 
unknown  to  the  law  of  nations. 

My  opinion  is,  and  I  think  the  general  court  should  so  certify  to  the 
circuit  court,  that  the  place  in  which  the  offences  charged  in  the  in¬ 
dictment  are  found  to  have  been  committed,  is  within  the  jurisdiction 
of  Virginia,  and  consequently  within  the  jurisdiction  of  the  circuit 
court  of  Wood  county. 

Opinion  of  Johnston,  J.  The  most  important  question  arising  in 
this  cause,  is  that  respecting  the  boundary  line  between  the  states  of 
Virginia  and  Ohio.  Having  once  settled  this  point,  and  ascertained  the 
true  line  where  the  territory  of  the  one  state  begins  and  that  of  the 
other  ends,  it  will  be  easy  to  determine  whether  the  offence  with 
which  the  defendants  in  the  indictment  are  charged  was  committed 
within  the  jurisdiction  of  Virginia  or  of  Ohio.  I  shall  therefore  pro¬ 
ceed  to  consider,  in  the  first  place,  what  is  the  true  boundary  between 
these  two  states ;  and,  in  doing  so,  I  shall  assume  that  the  title  of  Vir¬ 
ginia  to  the  northwestern  territory  was  a  valid  and  subsisting  one  at 
the  time  she  ceded  it  to  the  United  States,  notwithstanding  the  very 
learned  argument  submitted  by  the  counsel  for  the  state  of  Ohio  to 
prove  the  reverse.  It  does  not  become  a  Virginia  court,  it  seems  to 
me,  to  argue  such  a  question.  It  is  not  open  for  our  consideration.  It 


38 


[Doc.  No.  17.] 

has  been  closed  by  the  original  constitution  itself,  by  which  our  govern¬ 
ment  was  established  in  1776.  By  that  solemn  instrument  (after 
ceding  and  confirming  to  Maryland,  Pennsylvania,  North  and  South 
Carolina  the  territories  contained  within  their  respective  charters,)  it  is 
declared  that  “  the  western  and  northern  extent  of  Virginia  shall,  in  all 
other  respects,  stand  as  fixed  by  the  charter  of  king  James  the  first, 
in  the  year  one  thousand  six  hundred  and  nine,  and  by  the  public 
treaty  of  peace  between  the  courts  of  Great  Britain  and  France  in 
the  year  1763,”  &c.  That  this  charter  of  king  James,  which  granted 
to  the  Virginia  company  the  territory  extending  from  Point  Comfort 
200  miles  to  the  south  and  200  miles  to  the  north  along  the  Atlantic 
coast,  and  thence  a  breadth  of  400  miles  to  the  west  and  northwest 
quite  through  the  continent  to  the  coast  of  the  Pacific,  embraced  the 
territory  northwest  of  the  river  Ohio,  and  that  the  title  of  Virginia 
thereto  was  valid  notwithstanding  the  suppression  of  the  said  company 
by  the  royal  proclamation  in  1624,  Virginia  has  repeatedly  declared  by 
acts  of  her  legislature  and  by  her  final  cession  of  it  in  1783  to  the 
United  States.  Whatever  weight  these  solemn  acts  of  Virginia,  claim¬ 
ing  the  territory  in  question,  may  be  entitled  to  in  the  estimation  of 
others,  it  seems  to  me  they  are  conclusive  upon  this  court;  and  there¬ 
fore,  that  we  are  bound  to  regard  the  title  of  Virginia  as  valid  at  the 
time  she  ceded  the  same  to  the  United  States. 

Virginia,  then,  being  the  proprietor  of  the  territory  on  both  sides  of 
the  river  Ohio,  by  her  deed  in  1783  conveyed  all  her  “right,  title  and 
claim  as  well  of  soil  as  jurisdiction”  to  that  part  of  it  “  situate,  lying 
and  being  to  the  northwest  of  the  river  Ohio”  to  the  United  States. 

By  the  very  terms  of  this  grant,  the  river  itself  did  not  pass.  The 
conveyance  was  of  the  territory  lying  and  being  to  the  northwest  of 
the  river;  and  these  terms  exclude  the  idea  that  Virginia  intended  to. 
part  with  the  river  itself,  but  on  the  contrary  clearly  manifest  her  in¬ 
tention  to  retain  it  in  her  own  territory. 

But  if  this  were  doubtful  from  the  conveyance  itself,  the  river  would 
still  belong  to  Virginia  by  the  law  of  nations.  According  to  that  law, 
when  a  great  river  is  the  boundary  between  two  states,  if  the  original 
property  is  in  neither,  and  there  be  no  convention  respecting  it,  each 
holds  to  the  middle  of  the  stream.  But  when,  as  in  this  case,  one 
state  is  the  original  proprietor  and  grants  the  territory  on  one  side  only, 
it  retains  the  river  within  its  own  domain  and  the  newly  created  state 
extends  to  the  river  only.  Thus,  by  the  law  of  nations,  as  well  as  by 
the  very  terms  of  the  cession,  Virginia  did  not  part  with  her  property 
in  the  river. 

But  it  is  equally  clear,  it  seems  to  me,  that  she  did  part  with  her 
property  in  every  foot  of  territory  beyond  the  river ;  and  that  she  in-  i 
tended  to  confer  upon  the  United  States  the  whole  northwestern  terri¬ 
tory,  commencing  at,  or  resting  upon  the  Ohio  river.  Now  these  two 
intents  of  Virginia,  apparent,  it  seems  to  me,  on  the  face  of  her  deed, 
to  wit :  the  intent  to  part  with  the  whole  territory  on  the  opposite  side 
of  the  river  and  the  intent  to  confer  it  upon  the  United  States  up  to 
the  river,  can  only  be  effected  by  adopting  the  low  water  mark  on  the 
Ohio  as  the  dividing  line  between  them.  If  any  other  be  established —  ( 


39 


[Doc.  No.  17.] 

tor  instance,  if  the  bank  of  the  river,  or  high  water  mark,  or  the  mark 
when  the  river  is  at  its  ordinary  height  be  fixed  as  the  boundary  line — 
then,  during  those  portions  of  the  year  when  the  river  is  at  low  water, 
there  will  be  a  strip  of  land  along  the  whole  course  of  the  river,  be¬ 
tween  low  water  mark  and  the  boundary  line,  belonging  to  Virginia, 
and  that  too  lying  to  the  northwest  of  the  river  Ohio  and  separated  by 
that  river  from  the  rest  of  her  territory :  And,  moreover,  this  same 
strip  of  land,  during  the  same  periods  of  the  year  when  the  river  should 
recede  to  low  water  mark,  would  be  an  intervening  space  between  the 
territory  ceded  away  by  Virginia  and  the  river  itself.  In  other  words, 
the  citizens  of  the  state  of  Ohio,  which  was  formed  out  of  a  portion 
of  this  territory,  would  have  to  pass  over  a  part  of  the  territory  of  Vir¬ 
ginia  in  order  to  reach  the  river,  which  by  the  obvious  intent  of  the 
grant  was  intended  to  be  the  boundary  between  the  two  states.  The 
very  statement  of  the  proposition,  it  seems  to  me,  is  its  own  refutation. 
Who  ever  dreamed  that  Virginia  owned  any  territory  beyond  the  river 
Ohio  since  her  deed  of  cession  ?  Or  who  ever  supposed  that  a  citizen 
of  Ohio  had  to  pass  over  Virginia  soil  and  thus  subject  himself  to  a 
foreign  jurisdiction  before  he  reached  that  noble  river  from  which  his 
state  derived  its  name  ? 

Nor  does  the  assumption  of  some,  that  the  Ohio  river  comprises  not 
only  the  water  in  the  bed  of  the  stream  but  the  bed  itself,  whether 
covered  with  water  or  liable  only  to  be  covered,  and  that  the  strip  of 
land  left  bare  by  the  receding  of  the  water  would  belong  to  Virginia 
in  right  of  her  original  sovereignty  over  the  river,  which  she  never 
parted  with,  remove  the  difficulty.  By  whatever  right  or  title  Vir¬ 
ginia  held  it,  it  would  still  present  an  intervening  space  of  ground  be¬ 
tween  the  state  of  Ohio  and  the  Ohio  river  at  low  water ;  and  every 
individual  who  reached  the  river  from  the  state  of  Ohio  would  do  so  by 
the  courtesy  of  Virginia  in  permitting  him  to  pass  over  her  territory. 

Neither  is  the  difficulty  removed  by  saying,  that  under  the  compact 
between  Virginia  and  Kentucky  (which  I  shall  have  occasion  to  notice 
more  particularly  hereafter),  it  was  provided  that  the  respective  juris¬ 
dictions  of  those  two  states  on  the  river  should  be  concurrent  only  with 
the  states  which  might  possess  the  opposite  shores.  Still,  the  original 
sovereignty  of  Virginia  over  the  river  remained  the  same.  She  chose 
to  divide  her  jurisdiction  over  it  with  Ohio,  but  she  did  not  divide  her 
dominion  over  the  soil.  That  remained  absolute  and  exclusive.  And 
so,  in  any  point  of  view,  if  the  low  water  mark  is  not  the  true  boun¬ 
dary  line  the  space  of  ground  left  bare  by  the  receding  of  the  water  be¬ 
tween  that  mark  and  the  real  boundary,  wherever  it  may  be,  whether 
the  bank  of  the  river  or  high  water  mark,  will  be  the  absolute  proper¬ 
ty  of  Virginia,  forming  a  part  of  its  territory  and  separating  the  terri¬ 
tory  of  Ohio  from  the  Ohio  river  at  low  water. 

What  if  Ohio  does  possess  concurrent  jurisdiction  over  this  strip  of 
land  with  Virginia.  By  whose  laws  shall  it  be  governed?  Which 
state  has  a  right  to  enact  laws  for  the  government  of  this  territory  of 
Virginia  ?  Has  Virginia  alone  that  right,  or  does  she  share  it  in  com¬ 
mon  with  Ohio  ?  If  Virginia  alone — then  all  the  offences  committed 
all  the  contracts  entered  into  and  all  the  property  upon  this  disputed 


40 


[  Doc.  No.  17.  ] 

territory  are  subject  to  the  laws  of  Virginia.  But  if  each  state  pos¬ 
sesses  this  right,  then  in  case  of  a  conflict  of  laws  which  is  to  prevail  ? 
Are  the  citizens  of  Ohio,  engaged  in  their  daily  business  upon  the 
shores  of  this  busy  river,  loading  and  unloading  boats,  building 
wharves,  erecting  machinery,  buying  and  selling  produce,  to  be  sub¬ 
jected  while  thus  employed  to  the  laws  of  another  state  of  which 
they  are  ignorant  ? — or  are  they  to  be  regulated  and  governed  by  two 
distinct  codes  differing,  it  may  be,  essentially  from  each  other  ? 

These  are  but  a  few  of  the  many  difficulties  and  inconveniences 
that  would  inevitably  flow  from  considering  Virginia  the  absolute 
proprietor  of  the  land  between  low  and  high  water  mark,  whether  she 
exercised  exclusive  jurisdiction  over  it  or  concurrent  only  with  Ohio. 
In  either  event  it  would  be  her  soil — for,  not  being  included  in  her 
deed  of  cession,  her  original  sovereignty  over  it  would  remain  unim¬ 
paired.  And  then  what  would  prevent  her  from  saying  to  Ohio  and 
her  citizens,  you  shall  not  violate  my  territory  by  passing  over  it  to 
the  river?  True,  the  Ohio  river  itself,  being  a  navigable  stream,  is, 
according  to  the  law  of  nature  and  nations,  a  common  highway,  and 
you  have  a  right,  notwithstanding  my  dominion  over  it,  to  the  free 
use  of  it  for  the  purposes  of  navigation  :  but  then,  you  have  no  right 
to  pass  over  my  soil  without  my  consent,  to  get  to  it.  It  would  be  no 
answer  to  such  an  objection  for  Ohio  to  say — true,  you  are  the  owner 
of  the  land  you  speak  of,  but  then  it  is  a  part  of  the  shores  of  the 
river,  and  the  right  to  the  free  use  of  the  river  includes  a  right  to  the 
use  of  the  shores.  This  would  have  been  a  good  answer  under  the  civil 
law,  which,  going  beyond  the  common  law,  declared  that  all  rivers 
where  the  flow  of  water  was  perennial  belonged  wholly  to  the  public 
and  carried  with  it  the  right  of  fishing  as  well  as  the  public  use  of  the 
banks.  Inst.  2,  1,  2.  And  in  the  3d  volume  of  Kent’s  Commenta¬ 
ries  p.  332,  the  learned  author  says  that  Bracton,  adopting  the  doctrine 
of  the  civil  law,  held  that  the  right  of  fishing  in  rivers  and  the  use  of 
the  banks  was  common  jure  gentium.  But,  adds  the  chancellor,  “  it 
is  every  where  agreed,  that  this  common  right  is  liable  to  be  modified 
and  controverted  by  the  municipal  law  of  the  land,  and  no  person  has 
a  right  to  pass  over  the  lands  of  others  in  order  to  get  to  the  water.” 
And  accordingly,  in  Blundel  v.  Catteral,  5  Barn.  &  Aid.  268,  “  the 
doctrine  of  the  civil  law  as  stated  by  Bracton  was  disclaimed,  and  it 
was  held,  that  the  public  had  no  common  law  right  of  passing  the 
beach,  or  sea-shore,  for  the  purpose  of  bathing  in  the  sea,  as  against 
the  lord  of  a  manor  who  was  owner  of  the  soil  of  the  shore,  and  had 
the  exclusive  right  of  fishing  therein.”  Now,  at  common  law,  the 
shores  of  the  sea  as  well  as  the  shores  of  navigable  or  tidewaters,  be¬ 
longed  to  the  crown  and  were  common  to  every  person  till  granted — 
but  when  granted  away  by  the  crown,  as  in  the  case  just  referred  to, 
no  person  could  pass  over  them  in  order  to  get  to  the  sea.  Suppose 
Virginia  then  should  grant  away  the  shores  of  the  Ohio,  which  are 
nothing  more  than  the  space  of  ground  between  low  and  high  water 
mark,  as  will  presently  be  shewn,  how  would  Ohio  reach  the  river 
■when  the  water  was  down  to  low  water  mark  ?  See  Hale  De  Jure 
Maris,  where  it  is  laid  down  that  the  shore  of  the  sea  of  common 


41 


[  Doc.  No.  17.  ] 

right  belongs  to  the  king,  but  may  be  vested  in  a  subject  by  prescrip¬ 
tion  or  grant — as,  if  the  king  grants  a  manor  cum  littore  mans  eidem 
adjacente,  the  shore  itself  will  pass. 

Surely  a  doctrine  involving  the  inconveniences  and  consequences  to 
which  I  have  but  alluded,  cannot  be  correct ;  and  if  there  were  no 
other  reasons,  these  of  themselves  would  be  sufficient  to  lead  us  to 
adopt  the  low  water  mark  as  the  boundary  line  between  the  two  states. 

But,  fortunately,  we  are  not  without  authority  upon  this  most  inte¬ 
resting  and  important  question ;  authority,  too,  of  the  highest  charac¬ 
ter  and  entitled  to  the  gravest  consideration  and  utmost  deference  of 
this  court.  I  mean,  of  course,  the  authority  of  chief  justice  Marshall, 
in  the  case  of  Handley’s  lessee  v.  Anthony,  5  Wheat.  Rep.  374,  cited 
at  the  bar.  This  was  an  ejectment  brought  in  the  circuit  court  of  the 
United  States  for  the  district  of  Kentucky,  to  recover  land  claimed  by 
the  plaintiff  under  a  grant  from  Kentucky,  and  held  by  the  defendant 
as  a  part  of  Indiana  under  a  grant  from  the  United  States ;  and  the 
title  depended  upon  the  naked  question  whether  the  land  in  controversy 
was  located  in  the  state  of  Kentucky  or  the  state  of  Indiana.  In  order 
to  determine  this,  it  became  necessary  to  ascertain  the  true  boundary 
line  between  these  two  states,  and  in  doing  so  the  court  below  held 
that  the  state  of  Kentucky  extended  only  to  low  water  mark  on  the 
western  or  northwestern  side  of  the  river  Ohio,  and  did  not  include  a 
peninsula  or  island  (which  included  the  land  in  controversy)  on  the 
western  or  northwestern  bank,  separated  from  the  main  land  by  a  chan¬ 
nel  or  bayou,  which  was  filled  with  water  only  when  the  river  rose  10 
feet  above  lower  water  mark,  and  at  other  times  was  dry.  And  this 
decision  was  unanimously  affirmed  by  the  supreme  court  of  the  United 
States,  the  highest  legal  tribunal  in  our  land,  over  which  presided  the 
greatest  judicial  character  of  the  age  in  which  he  lived.  Now  if  the 
low  water  mark  separates  Kentucky  from  Indiana,  the  same  line  sepa¬ 
rates  Virginia  from  Ohio  ;  for  both  Indiana  and  Ohio  were  portions  of 
the  northwestern  territory  ceded  to  the  United  States  by  Virginia,  and 
the  true  boundary  of  each  therefore  depends  upon  the  proper  construc¬ 
tion  of  the  same  deed  of  cession.  The  case  of  Handley’s  lessee  v. 
Anthony  et  al.  is  an  express  authority  then  upon  the  identical  question 
before  this  court,  and  is  entitled,  it  seems  to  me,  to  the  most  profound 
respect.  It  is  not  surprising  that  its  force,  therefore,  should  have  been 
attempted  to  be  broken,  in  argument,  by  contending  that  although  the 
question  of  boundary  was  decided,  yet  it  did  not  properly  arise  in  the 
case,  and  that  the  real  question  was  whether  the  land  claimed  by  the 
plaintiff  was  an  island  or  not.  But  this  attempt,  it  seems  to  me,  en¬ 
tirely  failed.  There  were  two  exceptions  to  the  opinion  of  the  court 
below,  and  the  chief  justice,  in  delivering  the  opinion  of  the  court 
above,  says  :  “  The  two  exceptions  present  substantially  the  same  ques¬ 
tions  to  the  court,  and  may  therefore  be  considered  together.  They 
are,  whether  land  is  properly  denominated  an  island  of  the  Ohio  unless 
it  be  surrounded  with  the  water  of  the  river  when  low  ?  and  whether 
Kentucky  was  bounded  on  the  west  and  northwest  by  the  low  water 
mark  of  the  river,  or  at  its  middle  state  ?  or,  in  other  words,  whether 
6 


42 


[Doc.  No.  17.] 

the  state  of  Indiana  extends  to  low  water  mark,  or  stops  at  the  line 
reached  by  the  river  when  at  its  medium  height  ?” 

And  in  another  part  of  his  opinion  he  says  :  “  The  opinions  given  by 
the  court  must  be  considered  in  reference  to  the  case  in  which  they 
were  given.  The  sole  question  in  the  cause  respected  the  boundary 
of  Kentucky  and  Indiana ,  and  the  title  depended  entirely  upon  that 
question.  The  definition  of  an  island  which  the  court  was  requested 
to  give,  was  either  an  abstract  proposition,  which  it  was  unnecessary  to 
answer,  or  one  which  was  to  be  answered  according  to  its  bearing  on 
the  facts  in  the  cause.  The  definition  of  an  island  was  only  material 
so  far  as  that  definition  might  aid  in  fixing  the  boundary  of  Kentucky."1 
So  far  then  from  the  question  whether  the  laud  was  an  island  or  not 
being  the  main  one  in  the  cause,  it  was,  in  the  opinion  of  the  supreme 
court,  only  material  so  far  as  it  might  aid  in  fixing  the  boundary  of 
Kentucky  and  Indiana,  which  in  fact,  in  the  language  of  judge  Mar¬ 
shall,  was  the  sole  question  involved  and  was  directly  brought  up  by 
the  instructions  asked  for  in  the  court  below  both  by  the  plaintiff1  and 
defendant.  By  the  2d  instruction,  for  instance,  moved  by  the  defen¬ 
dant,  the  court  was  asked  to  instruct  the  jury  that  the  lessor  of  the 
plaintiff"  could  not  recover,  “  because  the  evidence  does  not  shew  that 
the  land  is  within  the  limits  of  the  state  of  Kentucky.”  Did  not  this 
present  the  question,  what  are  the  limits  of  Kentucky  ?  and  how  could 
this  be  ascertained  but  by  determining  what  was  the  true  boundary 
line  of  that  state  ?  If  low  water  mark  was  that  true  line,  then  whether 
this  land,  surrounded  by  a  bayou  at  ordinary  water,  was  technically  an 
island  or  not,  it  was  not  within  the  limits  of  Kentucky  which  reached 
only  to  low  water. 

So  in  the  plaintiff’s  instruction  the  court  was  moved  to  instruct  the 
jury,  that  if  the  land  in  controversy  was  surrounded  by  a  regular  wa¬ 
ter  channel  of  the  Ohio  on  the  northwest  side,  and  was  at  the  middle 
and  usual  state  of  the  water  surrounded  by  the  waters  of  the  Ohio, 
flowing  in  said  channel,  then  it  was  an  island  and  “ within  the  state  of 
Kentucky .”  Here  the  court  is  asked  directly,  to  affirm  that  the  land 
was  in  Kentucky.  How  could  it  do  this  without  first  ascertaining  the 
boundary  line  of  Kentucky  ?  The  negation  of  the  first  part  of  the 
proposition,  that  this  land,  surrounded  by  a  channel  which  at  times 
was  dry,  was  an  island,  did  not  settle  the  latter  part  of  the  proposition 
which  affirmed  that  the  land  was  in  Kentucky ;  for  this  land  might 
not  be  an  island,  and  yet  it  might  be  in  the  state  of  Kentucky.  For 
if  Kentucky  extended  to  high  water  mark  it  did  include  this  land  if 
the  channel  or  bayou  running  around  it  was,  as  the  plaintiff  below  con¬ 
tended,  to  be  considered  a  part  of  the  river.  Was  it  not  proper  then 
for  the  court  to  decide  whether  Kentucky  extended  to  high  water  mark 
or  reached  only  to  low  water?  It  seems  to  me  that  it  was,  and  that 
there  is  no  plausible  ground  for  evading  the  just  weight  to  which  this 
authority  is  entitled,  by  saying  that  the  supreme  court  did  not  under¬ 
stand  the  question  raised  by  the  record,  and  that  they  were  mistaken 
in  asserting  that  the  real  question  was  as  to  the  true  boundary  line  be¬ 
tween  Kentucky  and  Indiana.  The  case,  therefore,  it  seems  to  me,  is 
a  full  and  complete  authority  upon  the  very  question  now  before  this 


43 


[  Doc.  No.  17.  ] 

court,  and  we  must  either  follow  it  or  repudiate  and  overrule  it.  For 
my  part,  I  am  disposed  most  cheerfully  to  follow  it ;  not  merely  on  ac¬ 
count  of  the  exalted  source  from  which  it  comes  and  the  safety  of  fol¬ 
lowing  the  light  that  emanates  from  the  mind  of  such  a  man  as  judge 
Marshall,  but  because  my  own  judgment  most  fully  assents  to  its 
correctness. 

But  there  are  other  grounds  for  believing -that  Virginia  intended  by 
her  deed  of  cession  to  make  the  low  water  mark  the  boundary  be¬ 
tween  her  own  and  the  northwest  territory.  We  have  the  acts  and 
declarations  of  Virginia  herself,  subsequently  made,  to  prove  it.  In 
her  compact  with  Kentucky  in  1789,  subsequent  to  her  deed  of  ces¬ 
sion,  Virginia  consents  that  Kentucky  should  be  erected  into  an  inde¬ 
pendent  state  upon  certain  terms  and  conditions,  the  7th  of  which 
contained  the  following  provision :  “  The  respective  jurisdictions  of 
this  commonwealth  and  of  the  proposed  state,  on  the  river  as  afore¬ 
said,  shall  be  concurrent  only  with  the  states  which  may  possess  the 
opposite  shores  of  the  said  river.” 

Now  the  shore  of  the  sea,  according  to  lord  Hale’s  definition,  is  the 
ground  between  the  ordinary  high  and  low  water  mark,  and  if  the 
king  grants  a  manor  cum  littore  maris  eidem  adjacente ,  the  shore  itself 
will  pass ;  though  in  such  a  case  lord  Coke  expresses  the  opinion  that 
if  a  grant  was  made  of  the  sea  shore  the  freehold  would  shift  as  the 
sea  receded  or  encroached,  and  it  would  take  all  the  soil  that  should 
from  time  to  time  be  within  high  and  low  water  mark.  And  this  idea 
of  a  moveable  freehold  seems  to  have  been  entertained  by  the  chief 
justice  in  the  case  of  Arnold  v.  Mundy,  1  Halsted’s  Rep.  1.  But 
judge  Kent  in  his  commentaries,  vol.  3,  p.  347,  referring  to  these  doc¬ 
trines,  says,  that  he  “apprehended  the  better  opinion  to  be  that  in  or¬ 
dinary  grants  of  land  bounded  on  the  sea  or  a  river  the  boundary  limit 
must  be  stable,  either  at  ordinary  high  or  low  water  mark,  and  not 
subject  to  alternate  change  with  the  flux  and  reflux  of  the  tide.” 
Then  the  sea  shore,  as  well  as  the  shores  of  navigable  streams  in 
which  the  tide  ebbs  and  flows,  would  seem  to  be  the  fixed  and  perma¬ 
nent  space  between  high  and  low  water,  not  subject  to  change  with 
the  ebb  and  flow ;  and  the  same  rule  ought  to  hold,  it  seems  to  me,  in 
the  case  of  great  navigable  rivers  where  the  tide  does  not  ebb  and  flow 
daily  but  where  the  rise  and  fall  is  irregular.  It  has  been  so  holden  in 
Pennsylvania,  where  the  English  doctrine  that  no  rivers  are  deemed 
navigable  except  those  where  the  tide  ebbs  and  flows  has  been  held 
not  to  be  applicable  to  the  great  rivers  in  that  state,  such  as  the  Sus¬ 
quehanna  and  Delaware.  And  in  Handley’s  lessee  v.  Anthony,  the 
court  considered  that  the  same  reasons  of  general  convenience  which 
had  established  the  rule,  by  the  general  consent  of  mankind,  that  a 
country  bounded  by  a  river  in  which  the  rise  and  fall  was  diurnal  ex¬ 
tended  to  low  water  mark,  equally  applied  to  those  in  which  the  rise 
and  fall  was  annual.  5  Wheat.  380.  It  follows  then  from  these  au¬ 
thorities  that  the  shores  of  the  sea  and  of  rivers  where  the  tide  ebbs 
and  flows  are  the  space  of  ground  between  high  and  low  water  mark, 
and  that  they  are  not  subject  to  fluctuate  with  the  rise  and  fall  of  the 
water,  and  that  the  shores  of  great  navigable  streams  like  the  Ohio  or 


44 


[  Doc.  No.  17.  ] 

Delaware  are  the  same,  equally  fixed  and  permanent.  Hence  Virgi¬ 
nia,  when  she  spoke  in  her  compact  with  Kentucky  of  the  states  own¬ 
ing  the  opposite  shores,  must  be  understood  to  have  meant  by  that  lan¬ 
guage  the  ground  between  high  and  low  water  mark,  and  this  was 
tantamount  to  a  declaration  that  by  her  deed  of  cession  she  conveyed 
the  territory  northwest  of  the  river  Ohio  commencing  at  low  water 
mark ;  or,  what  would  amount  to  the  same  thing,  that  by  her  grant  of 
the  territory  northwest  of  the  river  Ohio  the  states  formed  out  of  that 
territory  would  by  the  law  of  nations  extend  to  low  water  mark.  This 
principle  of  the  lex  gentium  is  laid  down  by  judge  Marshall  (in  the 
case  already  referred  to  of  Handley’s  lessee  v.  Anthony,  5  Wheat.  3S0), 
as  indisputable  and  “established  by  the  common  consent  of  mankind” 
in  the  case  of  a  country  bounded  by  a  river  whose  tide  ebbs  and 
flows:  and  the  same  reason,  to  wit,  the  inconvenience  that  would  re¬ 
sult  from  the  opposite  doctrine,  would  make  this  principle  apply  to  a 
country  bounded  by  a  great  navigable  river  like  the  Ohio.  For  the 
same  judge  proceeds  to  say,  that  “even  when  a  state  retains  its  domi¬ 
nion  over  a  river  which  constitutes  the  boundary  between  itself  and 
another  state  it  would  be  extremely  inconvenient  to  extend  its  domi¬ 
nion  over  the  land  on  the  other  side  which  was  left  bare  by  the  rece¬ 
ding  of  the  water.  And  this  inconvenience  is  not  less  where  the  ri¬ 
sing  and  falling  is  annual  than  where  it  is  diurnal.”  And  then  he 
adds  “  Wherever  the  river  is  a  boundary  between  states  it  is  the  main 
permanent  river  which  constitutes  that  boundary ;  and  the  mind  will 
find  itself  embarrassed  with  insurmountable  difficulty  in  attempting  to 
draw  any  other  line  than  the  low  water  mark.”  This  is  the  doctrine, 
as  expounded  by  the  supreme  court,  in  regard  to  a  country  or  state 
bounded  by  a  river,  and  it  is  referred  to  with  seeming  approbation  by 
judge  Kent  in  the  3d  volume  of  his  commentaries,  p.  348. 

The  rule  of  the  common  law  is  different  when  applied  to  individu¬ 
als.  In  such  cases,  while  the  riparian  owner  under  a  grant  from  the 
crown  has  a  right  to  go  ad  jilum  medium  aquce  where  bounded  by  a 
fresh  water  river,  yet  on  tidewaters  he  cannot  go  beyond  ordinary 
high  water  mark.  Cortelyou  v.  Van  Brundt,  2  Johns.  Rep.  357.  3 

Kent  346.  In  such  cases  the  shores  below  ordinary  high  water  belong 
to  the  public,  and  in  a  grant  of  the  adjoining  lands  the  grant  would 
be  construed  most  favourably  for  the  public,  which  needs  the  shore  for 
common  purposes.  But  the  rule  would  be  inapplicable  when  the 
grantee  was  a  state  instead  of  an  individual.  For  the  very  conveni¬ 
ence  to  the  public,  which  restricts  the  grant  in  the  case  of  an  indivi¬ 
dual  from  passing  the  shores,  would  operate  as  a  reason  why  they 
should  pass  in  the  case  of  a  grant  to  a  state.  And  this,  I  apprehend, 
is  the  true  reason  why  the  rule  in  the  two  cases  is  different,  and  ex¬ 
plains  (what  at  first  might  appear  a  contradiction)  why  it  is  that  a 
grant  from  the  state  to  an  individual  would  restrict  him  to  high  water 
mark,  without  express  words  authorizing  him  to  go  farther,  and  a  si¬ 
milar  grant  to  a  state  would  carry  it  to  low  water  mark.  In  the  lat¬ 
ter  case  the  grant  would  be  construed  most  favourably  for  the  grantee, 
as  the  public  convenience  requires  that  a  state  bounded  by  a  river 
should  reach  the  low  water  mark  and  thus  be  entitled  to  the  shores. 


45 


[Doc.  No.  17.] 

But  the  meaning  of  Virginia  in  the  use  of  the  word  shores  in  her 
compact  with  Kentucky  may  be  farther,  and  perhaps  still  more  satis¬ 
factorily,  ascertained  by  the  use  she  makes  of  that  term  in  her  consti¬ 
tution  adopted  in  1776.  By  the  21st  article  of  that  instrument  it  is 
provided  that  “  the  territories  contained  within  the  charters  erecting 
the  colonies  of  Maryland,  Pennsylvania,  North  and  South  Carolina,  are 
hereby  ceded,  released  and  forever  confirmed  to  the  people  of  those 
colonies  respectively,  with  all  the  rights  of  property,  jurisdiction  and 
government,  and  all  other  rights  whatsoever  which  might  at  any  time 
heretofore  have  been  claimed  by  Virginia,  except  the  free  navigation 
and  use  of  the  Potomac  and  Pohomoke,  with  the  property  of  the 
Virginia  shores  or  strands  bordering  on  either  of  the  said  rivers,  and 
all  improvements  which  have  been  or  shall  be  made  thereon.”  And 
in  her  subsequent  act  of  1786,  confirming  the  compact  made  between 
certain  commissioners  of  Virginia  and  Maryland,  she  uses  still  more 
explicit  language,  in  the  7th  article  of  said  compact,  which  provides 
that  “  the  citizens  of  each  state  respectively  shall  have  full  property 
in  the  shores  of  Potomac  river  adjoining  their  lands,  with  all  emolu¬ 
ments  and  advantages  thereunto  belonging  and  the  privilege  of  making 
and  carrying  out  wharves  and  other  improvements  so  as  not  to  obstruct 
or  injure  the  navigation  of  the  river.”  Can  any  one  doubt  that  the  shores 
mentioned  in  this  article  extended  to  low  water  mark,  reserved  as  they 
were  for  the  purpose  of  carrying  out  wharves  and  other  improvements  ? 
And  if  so,  may  we  not  reasonably  conclude  that  the  same  thing  was 
meant  when,  in  her  compact  with  Kentucky,  Virginia  spoke  of  the 
states  owning  the  opposite  shores  of  the  Ohio  ?  What  could  be  more 
natural  ?  For  it  must  be  remembered  that  when  she  ceded  away  the 
northwestern  territory,  Virginia  did  so  upon  the  condition  that  separate 
and  independent  states  should  thereafter  be  formed  out  of  it,  which 
would  in  time  enter  into  the  Union.  And  she  intended  that  these 
states  thus  to  be  formed  should  be  bounded  by  the  Ohio  river,  over 
which  she  consented  they  might  exercise  concurrent  jurisdiction  with 
herself.  But  this  object  would  be  defeated  by  adopting  now  the  high 
water  mark  ;  for  then  during  a  part  of  the  year  those  states  would  not 
be  bounded  by  the  river,  but  would  be  cut  off  from  the  same  by  the 
strip  of  land  before  mentioned  lying  between  high  and  low  water 
mark. 

It  seems  to  me,  therefore,  that  in  whatever  light  the  question  is 
viewed,  whether  in  regard  to  the  inconveniences  that  would  result 
from  the  opposite  doctrine,  or  to  authority,  or  to  the  laws  of  nations, 
or  to  the  evident  intention  of  Virginia  as  manifested  by  cotemporaneous 
acts  and  declarations,  we  are  led  irresistibly  to  the  same  conclusion, 
and  that  is,  that  the  low  water  mark  on  the  Ohio  river  is  the  true 
boundary  between  the  territory  of  Virginia  and  Ohio,  and  that  conse¬ 
quently  the  jurisdiction  of  Ohio  is  exclusive  to  that  mark. 

I  shall  now  proceed  to  consider  the  principal  objections,  as  I  under¬ 
stand  them,  to  the  views  just  presented. 

And,  first,  it  is  said  that  by  her  compact  with  Kentucky,  in  which 
it  was  provided  that  her  jurisdiction  and  that  of  Kentucky  should  be 
concurrent,  on  the  river  only,  with  the  states  which  might  possess 


46 


[Doc.  No.  17.] 

the  opposite  shores,  Virginia  gave  evidence  that  she  considered  her¬ 
self  as  entitled  to  the  whole  river  up  to  high  water  mark,  or,  as  some 
contend,  even  to  the  top  of  the  bank  ;  and  that  consequently  she  could 
not  have  ceded  any  portion  of  it  away,  and  that  she  still  retained  her 
original  jurisdiction  over  it. 

But  I  have  already  endeavoured  to  shew  that  when  a  river  is  the 
boundary  between  states  it  is,  in  the  language  of  judge  Marshall  in 
Handley’s  lessee  v.  Anthony  380,  “  the  main  the  permanent  river  that 
constitutes  that  boundary.”  If  so,  Virginia  had  conveyed  away  all 
her  “  right,  title  and  claim,  as  well  of  soil  as  jurisdiction,”  to  the  terri¬ 
tory  northwest  of  the  river  Ohio  extending  to  low  water  mark,  and, 
consequently,  in  speaking  of  concurrent  jurisdiction  over  the  river,  she 
must  have  meant  the  “  main,  the  permanent  river”  which  she  had 
not  conveyed  away.  But  even  if  she  did  mean  more  than  this  in  her 
compact  with  Kentucky,  that  could  not  alter  or  affect  the  rights  of 
Ohio ;  for  she  was  no  party  to  that  compact,  and  her  rights  were  se¬ 
cured  by  the  deed  of  cession  itself,  by  which  Virginia  conveyed  to 
the  United  States  “  all  her  right,  title  and  claim,  as  well  of  soil  as  ju¬ 
risdiction,”  to  the  territory  northwest  of  the  Ohio.  See  her  deed  of 
cession  or  the  act  authorizing  it,  in  the  1st  vol.  of  the  R.  Code,  p.  40. 
And  this,  as  we  have  seen,  extended  to  low  water  mark.  Of  course 
beyond  that  mark  Virginia,  at  the  time  of  her  compact  with  Ken¬ 
tucky,  had  no  jurisdiction  to  share  with  the  states  on  the  opposite 
shores. 

I  take  it,  therefore,  that  the  concurrent  jurisdiction  mentioned  in  the 
Kentucky  compact  over  the  river  meant  the  main  permanent  river,  and 
if  so,  then  Virginia  has  exclusive  jurisdiction  to  low  water  markon  the 
Virginia  side.  But  if  Virginia’s  jurisdiction  is  concurrent  with  Ohio  to 
high  water  mark  on  the  Ohio  side,  then  Ohio’s  jurisdiction  is  concur¬ 
rent  with  Virginia  to  high  water  mark  on  the  Virginia  side ;  and  the 
citizens  of  Virginia,  in  that  event,  are  subjected  to  all  the  inconvenien¬ 
ces  that  we  have  spoken  of,  when  treating  of  the  importance  of  the 
strip  of  land  between  high  and  low  water  mark  to  the  citizens  of  Ohio, 
for  the  purposes  of  trade  and  the  erection  of  wharves  and  machinery 
connected  with  the  use  and  navigation  of  the  river.  Now  I  cannot  for 
a  moment  believe  that  Virginia  intended  to  give  up  the  exclusive  juris¬ 
diction  she  possessed  over  the  shores  on  the  Virginia  side  of  the  river. 
In  her  compact  with  Maryland,  1  vol.  R.  C.  p.  54,  it  is  expressly  pro¬ 
vided  that  “the  citizens  of  each  state  respectively  shall  have  full  pro¬ 
perty  in  the  shores  of  the  Potowmac  river  adjoining  their  lands and 
in  the  21st  article  of  our  constitution,  already  referred  to,  Virginia 
gives  up  to  Maryland,  Pennsylvania,  North  and  South  Carolina  the 
territories  contained  in  their  charters,  “  except  the  free  use  and  naviga¬ 
tion  of  the  rivers  Potowmac  and  Pohomoke,  with  the  property  of  the 
Virginia  shores  or  strands  bordering  on  either  of  the  said  rivers,  and 
all  improvements  which  have  been  or  shall  be  made  thereon.”  If  it 
was  important  to  us  to  retain  the  Virginia  shores  on  the  Potowmac,  it 
was  equally  so  in  regard  to  the  Virginia  shores  on  the  Ohio. 

I  conclude,  therefore,  that  Virginia  has  exclusive  jurisdiction  to  low 
water  on  this  side  of  the  river,  and  Ohio  has  exclusive  jurisdiction  on 


47 


[Doc.  No.  17.] 

the  other,  while  over  the  main  permanent  river  they  both  possess  con¬ 
current  jurisdiction;  the  ultimate  property  in  the  whole  river  to  low 
water  mark  on  the  Ohio  side  remaining  in  Virginia,  so  that  if  the  river 
should  at  any  time  suddenly  change  its  course,  leaving  its  present  bed 
bare,  the  land  thus  deserted  would  belong  to  Virginia  up  to  low  water 
mark  on  the  Ohio  side. 

But  it  is  said  that  it  is  important  to  Virginia  to  possess  concurrent 
jurisdiction  with  Ohio  to  high  water,  or  even  farther  when  the  river  is 
high,  in  order  to  protect  the  property  of  her  citizens  while  passing  up 
and  down  the  river;  that  if  Ohio’s  jurisdiction  is  exclusive  to  low 
water  mark  then,  it  is  said,  a  boat  passing  down  the  river  would,  so 
soon  as  it  passed  a  line  on  the  surface  of  the  water  corresponding  with 
low  water  mark,  be  in  the  limits  of  Ohio,  and  consequently  if  there 
should  be  a  Virginian  on  board  with  slaves,  they,  by  the  laws  of  Ohio, 
would  be  free. 

But  this,  I  apprehend,  is  a  mistaken  view  entirely  of  the  matter. 
The  protection  to  the  property  of  a  citizen  of  Virginia  in  such  a  case 
would  rest  upon  much  higher  and  safer  ground — upon  the  settled  and 
well  ascertained  laws  of  nature  and  of  nations,  which  declare  every 
navigable  river  to  be  a  common  highway  for  the  purposes  of  naviga¬ 
tion,  free  to  the  use  and  enjoyment  of  all.  And  this  principle  applies 
not  only  to  rivers  forming  the  boundary  between  different  states,  but 
to  those  even  which  lie  in  the  territory  of  one  state  exclusively.  In 
such  a  case  the  state  owning  the  river  cannot  obstruct  it  so  as  to  pre¬ 
vent  its  navigation  by  others ;  its  right  in  such  a  case  being  only  that 
of  a  limited  property  which  it  cannot  exert  but  by  respecting  the  rights 
of  others.  Vattel,  B.  1,  sec.  272.  And  the  same  author  in  B.  2,  sec. 
124,  after  saying  that  the  open  sea,  the  use  of  which  is  inexhaustible, 
cannot  fall  under  the  domain  or  property  of  any  one,  “  because  in  that 
free  and  independent  state  in  which  nature  has  produced  them  they 
may  be  equally  useful  to  all  men,”  adds  “Even  the  things  which  in 
other  respects  are  subject  to  domain,  if  their  use  is  inexhaustible  they 
remain  common  with  respect  to  that  use.  Thus  a  river  may  be  sub¬ 
ject  both  to  domain  and  empire,  but  in  quality  of  running  water  it  re¬ 
mains  common.” — “Nature,  who  designs  her  gifts  for  the  common  ad¬ 
vantage  of  men,  does  not  allow  of  their  being  kept  from  their  use  when 
ihey  can  be  furnished  with  them  without  any  prejudice  to  the  proprie¬ 
tor.”  And  sir  William  Scott,  treating  of  the  British  title  to  the  four 
seas,  said,  that  “  in  the  sea,  out  of  the  reach  of  cannon  shot,  universal 
ise  was  presumed  in  like  manner  as  a  common  use  in  rivers  flowing 
.hrough  conterminous  states  was  presumed.” 

So  there  is  a  common  use  in  rivers  as  well  as  the  sea ;  and  when 
Virginia,  in  her  compact  with  Kentucky,  stipulated  for  the  free  use  and 
navigation  of  the  Ohio  river  to  all  the  citizens  of  the  United  States,  she 
lid  nothing  more  than  declare  the  principles  of  the  laws  of  nature  and 
}f  nations  applicable  to  that  subject. 

Who  then  has  jurisdiction  over  persons  and  vessels  at  sea  ?  In  his 
idmirable  treatise  on  the  law  of  nations,  contained  in  the  first  volume 
}f  his  commentaries,  p.  26,  judge  Kent  lays  down  the  doctrine  that 
‘no  nation  has  any  right  of  jurisdiction  at  sea,  except  it  be  over  the 


48 


[  Doc.  No.  17.  ] 

persons  of  its  own  subjects  and  its  own  vessels;  and  so  far,  territorial 
jurisdiction  may  be  considered  as  preserved  ;  for  the  vessels  of  a  nation 
are  in  many  respects  considered  as  portions  of  its  territory,  and  persons 
on  board  are  protected  and  governed  by  the  law  of  the  country  to 
which  the  vessel  belongs.”  This  doctrine  is  also  laid  down  by  Gro- 
tius,  Rutherforth  and  Yattel,  and  is  fully  recognized  in  the  case  of  the 
United  States  v.  Palmer,  3  Wheaton  632,  in  which  it  was  held  that 
our  courts  had  no  jurisdiction  to  try  a  citizen  of  a  foreign  state  for  a 
crime  committed  in  a  foreign  vessel  at  sea.  The  court  say,  “  These 
are  offences  against  the  nation  under  whose  flag  the  vessel  sails,  and 
within  whose  particular  jurisdiction  all  on  board  the  vessel  are.”  And 
the  same  principle  was  contended  for  by  judge  Marshall  in  the  celebra¬ 
ted  argument  he  delivered  before  congress  on  the  resolutions  relative 
to  Thomas  Nash  alias  Jonathan  Robins.  This  individual,  being  a 
british  subject,  committed  murder  at  sea  on  board  a  british  ship,  and 
fled  to  the  United  States.  His  delivery  was  demanded  by  the  british 
government,  under  the  treaty  between  the  two  governments  providing 
for  the  surrender  of  fugitives  charged  with  murder  or  forgery  commit¬ 
ted  within  the  jurisdiction  of  one  of  the  contracting  parties,  and  taking 
refuge  in  the  country  of  the  other:  and  the  president  ordered  him  to 
be  surrendered.  The  argument  of  Mr.  Marshall  was  intended  to  jus¬ 
tify  the  president,  and  to  prove  that  although  there  was  a  concurrent  or 
common  jurisdiction  of  all  nations  at  sea,  in  a  certain  sense,  yet  t:  that 
the  jurisdiction  of  a  nation  extends  to  the  whole  of  its  territory,  and  to 
its  own  citizens  in  every  part  of  the  world  ;”  and  that  consequently  our 
courts  had  no  jurisdiction  to  try  the  individual  in  this  case,  he  being  a 
citizen  of  Great  Britain,  and  the  murder  committed  on  board  a  british 
vessel.  It  was  contended  on  the  other  side,  by  Mr.  Gallatin  and  others,! 
that  all  nations  had  a  common  or  concurrent  jurisdiction  at  sea,  and 
therefore  each  nation  had  jurisdiction  over  all  offences  committed  at 
sea,  and  consequently  the  executive  ought  not  to  have  surrendered  the 
fugitive,  who  ought  to  have  been,  as  they  contended,  tried  in  our 
courts.  But  the  argument  of  Mr.  Marshall  was  considered  at  the  time,! 
and  ever  since,  as  perfectly  unanswerable,  and  may  therefore  be  with 
propriety  referred  to  as  illustrating  the  question  before  this  court. 

If  this  be  the  correct  doctrine  in  regard  to  the  jurisdiction  of  nation? 
at  sea,  the  same  seems  to  me  to  apply  to  the  jurisdiction  upon  naviga-  i 
ble  streams ;  and  that  consequently  a  nation  or  state  having  a  right  tc 
the  free  use  and  navigation  of  a  river,  whether  by  virtue  of  the  laws  I 
of  nature  or  nations,  or  by  treaty  with  another  nation  or  state,  would  ij 
also  have  jurisdiction  over  its  citizens  and  their  property  while  engaged J 
in  navigating  such  river. 

This  may  be  illustrated  by  the  present  condition  of  things  in  tilt 
Oregon  territory.  By  treaty,  England  and  the  United  States  have  the 
joint  occupation  of  that  territory.  Each  has  a  right  to  the  navigatior 
of  the  Columbia  river.  Under  whose  jurisdiction  are  the  citizens  o 
the  two  countries  while  thus  engaged  ?  Undoubtedly  under  the  juris¬ 
diction  of  that  country  to  which  they  belong.  Here  is  the  case  then 
of  a  joint  occupation,  or  concurrent  jurisdiction,  if  you  please,  and  ye 
the  citizens  of  each  state  are  under  the  protection  of  the  laws  of  theii  4 
own  country. 


49 


[  Doc.  No.  17.  ] 

But  suppose  the  joint  occupation  were  to  cease,  and  each  country 
were  to  have  the  exclusive  possession  of  its  portion  of  the  territory. 
For  instance,  suppose  England  should  consent  that  our  territory  should 
extend  to  the  49th  degree  of  north  latitude,  provided  we  gave  her  the 
free  navigation  of  the  Columbia  river,  and  we  were  to  do  so:*  under 
whose  jurisdiction  would  a  citizen  of  Great  Britain  be  while  navigating 
this  stream  ?  Most  unquestionably,  under  that  of  Great  Britain,  al¬ 
though  the  river  itself  would  be  the  absolute  property  of  the  United 
States. 

The  same  principles,  it  seems  to  me,  apply  to  the  navigation  of  the 
Ohio.  Every  citizen  of  the  United  States  has  a  right  to  the  free  use 
and  navigation  of  that  river,  and  while  thus  engaged  is  under  the  pro¬ 
tection  of  the  laws  of  the  state  to  which  he  belongs,  just  as  a  citizen 
of  the  United  States  at  sea  is  under  the  protection  of  the  flag  of  the 
United  States. 

Here  then  is  the  security  to  Virginia  citizens  with  their  property. 
While  engaged  in  the  lawful  purpose  of  navigating  the  Ohio,  they  are 
protected  by  the  laws  of  Virginia,  no  matter  whether  they  be  on  the 
Virginia  or  Ohio  side  of  low  water  mark,  so  they  be  employed  in  na¬ 
vigating  the  river.  And  this  right  carries  with  it  the  necessary  means 
to  its  enjoyment:  consequently  a  Virginian  would  have  a  right  to  moor 
his  boat  to  the  shore  and  take  on  fuel ;  for  this  is  necessary  to  the  en¬ 
joyment  of  the  navigation  of  the  river.  This  was  insisted  on  by  the 
United  States  in  1792,  when  Spain  owned  the  mouth  and  both  banks 
of  the  lower  Mississippi.  It  was  then  contended  that  we  were  entitled 
by  the  law  of  nature  and  of  nations  to  the  navigation  of  that  river  to 
the  ocean,  subject  only  to  such  modifications  as  Spain  might  reasona¬ 
bly  deem  necessary  for  her  safety  and  fiscal  accommodation  :  and  this 
claim,  with  the  qualifications  attached  to  it,  says  judge  Kent,  “  was 
well  grounded  on  the  principles  and  authorities  of  the  law  of  nations.” 
Kent’s  Comm.  1st  vol.  p.  35.  If  this  was  the  case  in  regard  to  the 
Mississippi  at  a  time  when  it  was  in  the  dominions  of  a  foreign  nation, 
how  much  more  in  regard  to  the  Ohio,  lying  within  the  territory  of 
states  that  are  members  of  the  same  federal  union. 

Now  it  seems  to  me  that  this  is  placing  the  rights  of  Virginia  upon 
.much  safer  ground,  in  relation  to  her  slave  property,  than  the  concur¬ 
rent  jurisdiction  claimed  for  her  over  the  Ohio  river  at  every  stage  of 
the  water.  For  this  concurrent  jurisdiction  would  extend  only  as  far 
as  the  Virginia  line  dividing  her  from  Kentucky  extends.  So  soon  as 
that  line  is  passed,  Kentucky  has  concurrent  jurisdiction  with  Indiana 
over  the  river.  What  then  becomes  of  the  protection  to  our  property, 
which  has  passed  out  of  the  concurrent  jurisdiction  of  Virginia  and 
Ohio  into  that  of  Kentucky  and  Indiana?  Are  we  to  look  to  Ken¬ 
tucky  to  protect  it,  because  she  is  a  slave  state  also  ?  This  she  might 
ar  might  not  do,  as  she  chose.  But  suppose  Kentucky  should  follow 
the  counsel  of  some  of  her  politicians,  who  are  now  strongly  urging 
her  to  abolish  slavery,  and  should  become  a  free  state ;  where  then 
would  be  our  security?  A  Virginia  boat,  in  such  a  case,  having  slaves 

I - - - - - 

y  *  Note  by  the  judge.  This  was  written  before  the  late  treaty  between  the  United 
States  and  Great  Britain. 

7 

| 


50 


[  Doc.  No.  17.  ] 

on  board,  descending  the  river,  would,  so  soon  as  it  passed  the  limits  of 
Virginia,  find  itself  in  the  jurisdiction  of  two  nonslaveholding  states; 
and  then,  according  to  the  argument  of  the  counsel  for  Virginia,  the 
slaves  must  necessarily  be  free. 

Surely  this  view  of  the  subject  never  suggested  itself  to  their  minds, 
or  they  would  have  recoiled  from  placing  the  security  of  the  property 
of  Virginia  citizens  upon  a  ground  that  might  prove  so  utterly  worth¬ 
less  and  unavailing.  This  only  serves  to  shew  the  importance  of  de¬ 
liberation,  and  the  necessity  of  viewing  questions  in  all  their  ultimate 
bearings,  (especially  those  involving  great  interests,  like  the  present,) 
before  we  come  to  a  decision. 

Placing  the  rights  of  our  citizens  and  their  property  upon  the  broad 
and  unquestionable  right  that  every  citizen  of  the  United  States  pos¬ 
sesses  to  the  free  use  and  navigation  of  the  Ohio  river,  they  have  a  se¬ 
curity  that  will  be  availing  under  all  circumstances  and  in  all  time  to 
come. 

From  all  that  has  been  said,  the  conclusion  follows  that  the  accused, 
being  citizens  of  Ohio,  and  the  offence  with  which  they  are  charged 
having  been  committed  within  the  territorial  limits  of  Ohio,  are  not 
subject  to  the  jurisdiction  of  the  courts  of  Virginia,  and  ought  there¬ 
fore  to  be  discharged. 

Clopton  and  Wilson,  J.  concurred  in  the  opinion  of  Johnston,  J. 

Opinion  op  Baker,  J.  Judge  Baker  remarked,  that  obvious  neces¬ 
sity  and  propriety  required  that  the  court  should  consider  our  great 
western  rivers  as  public  navigable  watercourses,  and  treat  them  ac¬ 
cording  to  established  legal  principles  applicable  to  such  highways. 
It  is  true  the  supreme  court  of  the  United  States,  in  the  case  of  Hand- 
ly’s  lessee  v.  Anthony,  5  Wheaton’s  Rep.  which  was  a  controversy  in 
respect  to  territory,  and  which  was  much  relied  on  by  the  counsel  for 
the  state  of  Ohio,  decided  that  the  low  water  mark,  under  the  circum¬ 
stances  of  that  case,  was  the  proper  boundary  :  and  although  a  grant 
of  land  to  a  citizen,  bounded  upon  a  fresh  water  stream  or  river  not 
navigable,  and  where  the  tide  neither  ebbs  nor  flows,  extends  to  the 
channel  of  such  river,  ( usque  ad  filum  aquce)  yet  it  seems  to  be  esta¬ 
blished  by  unquestionable  authorities,  that  a  grant  of  land  bounded 
upon  a  navigable  river,  such  as  the  Ohio,  may  and  very  often  does  ex¬ 
tend  to  the  edge  of  the  water  only,  that  is  to  say,  to  high  water  mark ; 
and  such,  I  think,  is  the  doctrine  properly  applicable  to  the  subject 
under  consideration.  But  be  this  principle  as  it  may  in  reference  to 
the  circumstances  of  this  case,  my  opinion  is  that  the  difficulties 
which  the  supreme  court,  in  the  case  before  referred  to,  seem  to  think 
will  be  produced  by  establishing  any  other  boundary  in  respect  to 
territory  than  the  low  water  mark,  do  not  apply,  under  the  facts  of  this 
case,  with  like  force  and  propriety  to  the  mere  question  of  jurisdiction, 
and  are  not  therefore,  in  this  case,  of  overruling  importance.  The 
high  water  within  the  banks,  or  if  not,  the  state  of  the  water  in  the 
river  at  any  given  time,  I  apprehend  could  be  ascertained  with  more 
certainty  than  the  low  water  mark  ;  and  the  adoption  of  either  the 


51 


[  Doc.  No.  17.  ] 

high  water  mark  or  the  state  of  the  water  for  the  time  being,  as  the 
preferable  memorial  of  boundary,  will  leave  to  each  state,  as  I  pre¬ 
sume  must  have  been  originally  intended,  the  right  of  jurisdiction  over 
the  whole  and  every  part  of  the  river,  of  which  of  course  neither  state 
could  complain.  The  jurisdiction  of  both  states  would  in  that  case 
be  concurrent  and  coextensive,  and  Virginia  could  of  course  punish 
any  citizen  of  her  own  state  or  of  Ohio  for  any  violation  of  her  laws 
committed  on  the  river,  and  that  too  whether  committed  on  board  of 
her  own  vessels  or  otherwise  ;  and  I  apprehend  that  her  right  to  do 
so  could  not  be  ousted  or  impaired  by  the  consideration  that  the  vessel 
in  which  the  offence  was  so  committed  happened  then  to  be  in  part 
resting  upon  or  touching  the  shore  on  the  Ohio  side  ;  for  the  right  to 
touch,  nay  even  to  make  fast  to  the  Ohio  shore,  arises  necessarily  from 
the  right  to  navigate,  and  without  which  the  privilege  of  navigation 
would  be  greatly  impeded.  That  there  are  difficulties  in  this  case  of 
no  ordinary  character,  no  person,  I  think,  can  doubt ;  and  in  the  very 
able  argument  of  the  counsel  for  the  state  of  Ohio,  to  demonstrate  the 
existence  of  such  difficulties,  it  was  contended  that  the  establishment 
of  high  water  mark  as  the  boundary  would  greatly  obstruct  the  citi¬ 
zens  of  that  state  in  the  navigation  of  the  Ohio  river ;  that  it  would 
prevent  the  construction  of  wharves  and  other  fixtures  necessary  to 
the  free  enjoyment  of  that  important  right,  and  that  the  adoption  of  such 
a  boundary  would  carry  with  it  “perpetual  annoyance,  collision,  and 
never-dying  controversies  between  the  two  states.”  Now  in  reply  to 
this  and  all  such  speculative  arguments,  I  submit  that  it  is  only  neces¬ 
sary  to  refer  to  a  subsequent  part  of  the  same  counsel’s  discussion,  in 
which  he  contended  that  in  the  compact  between  Virginia  and  Ken¬ 
tucky,  it  is  declared  that  the  use  and  navigation  of  the  Ohio  river  shall  be 
free  and  common  to  the  citizens  of  the  United  States,  and  that  the 
respective  jurisdictions  of  Virginia  and  Kentucky  shall  be  concurrent 
with  the  states  that  may  possess  the  opposite  shores  of  the  said  river. 
The  word  shore,  I  know  it  is  said,  according  to  the  legal  writers,  has 
a  peculiar  technical  signification  ;  in  other  words,  that  that  term  means 
the  space  of  ground  between  high  and  low  water  mark.  Such  a 
meaning,  I  think,  cannot  be  made  properly  to  apply  in  this  case,  and 
can  only  be  given  when  applied  to  watercourses  in  which  there  is  a 
regular  periodical  ebb  and  flow  of  the  tide.  But  besides  this,  to  ob¬ 
viate  the  supposed  inconveniences  above  referred  to,  it  seems  to  me  it 
is  necessary  to  advert  to  one  or  two  facts  in  this  case,  about  which  no 
difference  of  opinion  exists.  Ohio,  1  think,  has  both  the  right  of  ju¬ 
risdiction  and  navigation.  What  possible  inconvenience,  then,  can 
attach  to  Ohio,  upon  the  establishment  of  the  high  water  mark,  or  the 
state  of  the  water  for  the  time  being,  as  the  proper  boundary  between 
the  two  states?  It  results,  it  seems  to  me,  from  the  very  nature  and 
character  of  their  relations,  shewn  by  the  history  of  this  transaction, 
that  although  Virginia  may  be  the  owner  of  the  soil  of  the  shore  on 
the  northwest  side  of  the  river,  yet  Ohio  would,  despite  the  claims  of 
Virginia,  have  the  unquestionable  right  to  establish  such  ports  and 
erect  such  wharves,  buildings  and  other  things  as  might  be  necessary 
for  the  carrying  on  of  commerce  and  navigation  on  any  parts  of  the 


52 


[  Doc.  No.  17.  ] 

shore  that  may  be  conveniently  used  for  such  erections ;  taking  care 
to  impede  as  little  as  possible  Ohio  river  itself  as  a  public  right  of  way  : 
and  this  would  leave  Virginia,  as  before  suggested,  entitled  to  the  soil, 
and  Ohio  to  an  easement  over  or  connected  with  it,  sufficient  for  all 
commercial  purposes. 

Respectfully  differing  as  I  do  with  the  majority  of  the  court  in  this 
case,  and  believing  that  the  prisoners  ought  to  be  punished  for  the 
offence  charged  against  them  in  the  indictment,  I  have  deemed  it  pro¬ 
per  to  state  briefly  the  grounds  upon  which  my  opinion  is  founded, 
and  leave  this  deeply  important  and  interesting  subject  to  be  more 
fully  discussed  and  elucidated  by  some  one  or  more  of  the  judges 
whose  opinions  have  led  them  to  the  same  result. 

Opinion  of  Fry,  J.  The  question  before  us  is  the  construction  of 
the  deed  of  cession  by  Virginia  of  the  northwestern  territory.  It  is 
too  late  in  the  day  to  enquire  into  the  right  and  title  of  Virginia  to  the 
lands  ceded.  It  is  beating  the  air  to  argue  the  question  before  a  Vir¬ 
ginia  court,  sitting  under  her  constitution  and  laws.  Congress  having 
accepted  that  cession,  and  created  the  state  of  Ohio  out  of  the  lands 
ceded,  the  state  of  Ohio,  as  claiming  under  the  United  States,  is  estop¬ 
ped  to  gainsay  the  title  of  Virginia. 

But  what  is  the  extent  of  the  cession  ?  By  her  deed  Virginia  con¬ 
veys  to  the  United  States  “all  her  right,  title  and  claim,  as  well  of 
soil  as  of  jurisdiction,  which  the  commonwealth  hath  to  the  territory 
or  tract  of  country,  within  the  limits  of  the  Virginia  charter,  situate, 
lying  and  being  to  the  northwest  of  the  river  Ohio,”  to  and  for  certain 
uses  and  purposes,  and  on  certain  conditions. 

One  of  these  conditions  was  “  that  the  territory  ceded  shall  be  laid 
out  and  formed  into  states  containing  a  suitable  extent  of  territory,” 
&c.  “and  that  the  states  so  formed  shall  be  distinct  republican  states, 
and  admitted  members  of  the  federal  Union  ;  having  the  same  rights 
of  sovereignty,  freedom  and  independence  as  the  other  states.” 

Congress  afterwards  passed  the  ordonnance  establishing  the  north¬ 
west  territory  ;  and  by  her  act  of  1  Revised  Code,  p.  ,  Virginia 

confirmed  the  ordonnance,  and  therein  designates  the  boundary  of  the 
eastern  state  to  be  created,  as  that  of  the  “  Ohio.”  And  by  the  act 
creating  the  state  of  Ohio  and  admitting  her  into  the  Union,  she  is 
bounded  “south  by  the  Ohio  river.” 

All  these  terms  descriptive  of  boundary,  I  suppose  to  mean  the  same 
thing.  They  make  the  “  Ohio  river”  the  boundary;  and  the  question 
is  what  is  meant  by  the  use  of  the  word  “  river.” 

Twenty-five  years  ago  this  was  decided  by  the  supreme  court  of 
the  United  States  in  the  case  of  Handly’s  lessee  v.  Anthony,  5  Wheat, 
to  mean  the  permanent  river ;  that  is  the  river  within  low  water  mark. 
In  that  case  it  was  held  that  the  states  of  Ohio  and  Indiana  extended 
to  the  low  water  mark  of  the  river.  The  chief  justice  admits  that  the 
question  was  not  without  difficulty:  but  that  the  mind  would  find  it¬ 
self  embarrassed  with  insurmountable  difficulties  in  coming  to  any 
other  conclusion.  And  though  difficulties  may  arise  from  the  bounda¬ 
ries  adopted  by  him,  I  apprehend  that  equal,  if  not  greater,  would  en¬ 
sue  from  adopting  any  other. 


53 


[Doc.  No.  17.] 

This  decision  I  consider  one  in  point,  and  not  obiter  as  contended. 
It  was  necessary  to  decide  the  very  question  whether  the  river  should 
be  taken  to  mean  the  low  water,  or  the  ordinary  or  other  height  of 
the  stream.  The  case  shewed  that  the  connexion  between  the  up¬ 
per  and  lower  part  of  the  river  was  formed  only  by  the  water  of  the 
river,  and  formed  when  the  water  was  at  its  ordinary  stage  :  that  it 
required  but  ten  feel?  above  the  lowest  water,  and  that  the  river  rose 
from  forty  to  fifty  feet.  Nor  did  the  fact  that  Indiana  had  always  be¬ 
fore  exercised  jurisdiction  determine  the  case.  The  question  was  one 
of  right  between  Indiana  and  Kentucky,  raised  by  conflicting  grants, 
and  the  court  was  obliged  to  say  whose  grant  was  lawful.  Kentucky 
by  her  very  patent,  the  court  was  bound  to  suppose,  had  assumed  or 
asserted  the  right  of  domain  and  jurisdiction. 

It  is  worthy  of  consideration  whether,  after  twenty-five  years,  du¬ 
ring  which  this  decision  of  the  supreme  court  has  been  supposed  to 
give  the  law  correctly  and  been  acted  on  by  the  people  and  courts  of 
Ohio  (see  11  Ohio  Rep.  138)  and  perhaps  by  the  people  and  courts  of 
Virginia  immediately  bordering  the  Ohio  river,  it  would  be  desirable  or 
proper  to  attempt  to  go  behind  it  and  convict  it  of  error;  unless  in¬ 
deed  the  error  were  very  manifest  and  looked  us  directly  in  the  face. 
But  this  can  hardly  be  predicated  of  the  decision  in  question  ;  if  it 
could  of  any  decision  ever  made  by  that  great  judge.  For  it  is  ac¬ 
knowledged  that  great  difficulties  surround  the  question,  view  it  as  we 
will ;  and  the  decision  is  chiefly  assailed  because  of  a  supposed  danger 
or  collision  which  has  not  yet  occurred,  and  which  at  the  date  of  the 
cession  was  not  probably  anticipated,  and  therefore  guarded  against. 
To  the  authority  of  this  decision  we  have  now  to  add  prescription. 
For  25  years  since  this  decision,  and  for  the  whole  period  of  her  pre¬ 
vious  existence,  Ohio  has  been  in  possession  of  the  territory  to  low 
water  mark.  She  has  granted  it  by  patent,  and  made  every  use  of  it 
which  her  wants  and  convenience  required,  and  of  which  as  property 
it  was  susceptible  ;  in  short,  has  treated  it  as  her  domain,  and  extended 
over  it  her  jurisdiction  and  laws.  If  this  be  not  found  in  the  verdict, 
it  is  to  be  found  in  part  in  the  reports  of  the  decisions  of  her  supreme 
court,  and  is  matter  of  notoriety  and  common  observation. 

It  was  said  that  there  was  no  authority  for  the  proposition  of  judge 
Marshall  that  a  grant  to  a  sovereign,  binding  upon  a  river  or  arm  of  the 
sea  where  the  tideebbs  and  flows,  would  carry  the  grant  to  such  so¬ 
vereign  to  low  water  mark  or  ebbtide :  But  it  is  fairly  deduced,  from 
what  seems  well  settled,  that  a  sovereign  owning  the  territory  upon 
such  river  or  sea  owns  to  such  low  water  mark.  “  It  is  admitted,” 
says  Sir  Matthew  Hale  De  Jure  Maris.  Harg.  Law  Tracts  12,  “  that 
de  jure  communi,  between  high  and  low  water  mark  doth  prima  facie 
belong  to  the  king.”  Again  :  “  The  next  evidence  of  the  king’s  right 
and  property  in  the  sea  and  the  arms  thereof  is  his  right  of  property  to 
the  shore,  and  maritima  incrementa.  The  shore  is  that  ground  be¬ 
tween  the  ordinary  water  and  low  water  mark.  This  doth  prima  facie 
and  of  common  right  belong  to  the  king,  both  in  the  shore  of  the  sea 
and  the  shore  of  the  arms  of  the  sea.” 


54 


[Doc.  No.  17.] 

Now  when  one  state  grants  to  another  state  the  soil  and  jurisdiction 
upon  such  a  river  or  sea,  or  creates  a  new  state  or  sovereignty  bounded 
by  such  river  or  sea,  where  the  tide  ebbs  and  flows,  does  it  not  follow 
prima  facie  that  this  new  sovereignty  would  enjoy,  and  be  intended  tc 
enjoy,  this  right  de  jure  communi  of  owning  the  shore  and  passing  tc 
low  water  or  ebbtide  ?  Does  it  not  follow  if  no  exception  be  made,  i 
from  the  character  of  the  grantee  and  the  knowrf  prerogative  or  right 
incident  to  such  grantee  so  situated  ?  Now  in  the  case  in  question  the  . 
United  States  were  the  grantees,  themselves  sovereign,  and  expressly 
taking  in  trust  to  create  a  certain  number  of  other  sovereign  states, 
having  the  great  river  Ohio  for  their  boundary.  This  river,  though 
not  navigable  in  the  sense  of  the  common  law,  is  so  in  fact,  and  the 
incidents  of  a  navigable  water  at  the  common  law  apply  to  it  upon 
every  reason  from  which  those  incidents  arise  at  the  common  law.  j> 
That  the  rise  and  flow  of  the  Ohio  is  casual  and  variable,  instead  ot 
diurnal,  and  great  instead  of  small  or  trifling,  requires  a  fortiori  the 
common  law  incident  before  mentioned  pertaining  to  the  sovereign. 

It  could  not  be  intended  that  a  friendly  sovereign,  granting  to  another 
friendly  sovereign  territory  so  situate  and  bounded,  designed  without  an 
express  reservation,  to  restrict  this  common  law  incident,  to  retain  the 
right  to  pass  the  river,  and  claim  jurisdiction  over  the  soil  beyond.  Sucha 
jurisdiction  would  be  too  inconvenient  to  both  parties  to  suppose  it  in¬ 
tended  or  desired. 

The  passage  cited  from  Lord  Hale  proves  also  that  the  space  be¬ 
tween  high  and  low  water  mark  is  the  shore ;  and  Virginia  in  her  com-  i 
pact  with  Kentucky  recognizes  the  states  opposite  to  her  on  the  Ohio 
as  owning  the  shores  of  the  river.  See  5  Bacon  499,  Wilson’s  ed. 

A  distinction  may  well  be  taken  between  the  grant  of  a  patent  to  A 
for  (say)  100  acres  of  land  bounded  south  by  the  river,  whilst  Virginia  : 
retained  the  right  of  property  and  jurisdiction  over  the  country  itself,  ■ 
and  the  grant  of  the  whole  country  to  a  sovereign  nation.  Adopting 
the  analogy  of  the  sea  or  tidewaters,  the  nation  might  be  deemed  to 
retain  the  right  to  the  shore  in  the  case  of  the  private  grant,  and  not 
to  do  so  in  the  case  of  the  grant  to  the  nation.  The  latter  might  well 
be  deemed  to  take  the  public  rights  to  the  shore,  as  appurtenant  to  her 
empire  in  the  same  manner  as  they  had  been  held  by  the  granting 
sovereign. 

What  is  said  (16  Peters  411)  in  the  case  of  the  oyster  beds  of  New 
Jersey  may  be  referred  to  as  confirming  this  distinction,  and  the  con¬ 
struction  put  on  the  Ohio  grant,  in  5  Wheat.  “  It  is  not  a  deed  con¬ 
veying  private  property,  to  be  interpreted  by  the  rules  applicable  to 
cases  of  that  description.  It  was  an  instrument  upon  which  was  to  be 
founded  the  constitutions  of  a  great  political  community,  and  in  that 
light  it  is  to  be  regarded  and  construed.”  Ch.  just.  Taney,  of  the  grant 
to  the  duke  of  York,  &c. 

I  conclude  that  Handly’s  lessee  v.  Anthony  was  rightly  decided  ;  that 
the  shores  of  the  river  on  the  northwest  side  belong  to  Ohio;  and  that 
the  shores  extend  to  low  water  mark.  The  claim  to  go  to  the  high 
water,  or  the  top  of  the  bank  on  the  other  side,  I  take  to  be  out  of  the 
question  in  such  a  river  as  the  Ohio.  For  the  greater  part  of  the  year, 


55 


[Doc.  No.  17.] 

ind  for  many  years  together  the  entire  year,  large  spaces  of  land  are 
left  bare  by  the  recession  of  the  water,  and  devoted  to  various  pur¬ 
poses  of  industry  and  art.  Boats  of  all  kinds  are  built  upon  it ;  coals 
are  mined  ;  railways  for  logs,  coals  and  merchandize  constructed  ;  water 
pipes  laid ;  warehouses  and  perhaps  other  tenements  built.  Are  all 
these,  and  the  numerous  people  connected  with  them,  subject  to  the 
taws  of  Virginia  ?  Of  what  annoyance  would  such  a  jurisdiction  be 
to  the  people  of  Ohio?  And  how  little  less  so  to  those  of  Virginia? 
With  what  convenience  could  Virginia  exercise  jurisdiction  over  a 
small  strip  of  variable  shore  on  the  opposite  side  of  a  great  river  for 
more  than  300  miles?  Such  a  jurisdiction  would  not  be  desirable  ; 
and,  as  was  said  by  judge  Marshall,  could  never  have  been  intended. 
It  is  said  (3  Wheat.  386)  that  the  jurisdiction  of  a  state  is  “coexten¬ 
sive  with  its  territory,  coextensive  with  its  legislative  power.”  But 
though  the  soil  and  jurisdiction  of  the  shore,  from  low  water  to  high, 
belongs  to  the  state  of  Ohio,  is  this  inconsistent  with  a  jurisdiction  in 
Virginia  over  the  water  of  the  shore,  covering  the  same  space  and 
within  the  usual  banks  of  the  river?  May  not  Virginia  hold  divisum 
imperium  with  Ohio;  so  that  when  the  river  is  full  within  its  banks 
her  jurisdiction  goes  to  the  edge  of  the  stream,  and  when  it  recedes 
even  to  the  lowest  line  the  jurisdiction  of  Ohio  follows  it? 

The  terms  of  the  grant  are  that  Virginia  cedes  her  rights  of  “  soil 
and  jurisdiction  to  the  territory  or  tract  of  country  lying  and  being  to 
the  northwest  of  the  river  Ohio.”  This  means,  we  have  seen,  the 
permanent  river,  as  to  the  rights  of  soil  and  property ;  and  we  have 
supposed  such  to  have  been  the  intent,  from  the  character  of  the  parties, 
the  nature  of  the  stream,  the  objects  of  the  grant,  and  the  convenience 
and  necessities  of  the  states  to  be  created.  But  whilst  the  term  “river” 
is  thus  limited,  for  the  convenience  and  necessities  of  Ohio,  when  at 
low  water,  may  it  not  also  for  the  convenience  and  necessities  of  Vir¬ 
ginia,  when  it  is  high,  be  enlarged  or  rather  allowed  to  retain  its 
wonted  and  appropriate  meaning  ?  Give  it  its  ordinary  sense  of  “  a 
large  stream  of  water  flowing  in  a  channel  towards  the  ocean,”  (Web¬ 
ster) ;  and  whilst  for  the  convenience  and  necessities  of  Ohio  we 
bound  it  as  the  seasons  bound  it,  so  as  to  give  her  the  soil  and  jurisdic¬ 
tion  of  a  part  of  this  channel,  which  the  receding  water  allows  her  to 
use,  and  has  made  continuous  with  her  other  territory,  let  the  seasons 
bound  it  also  for  Virginia  in  the  same  channel,  as  to  the  use  and  juris¬ 
diction  of  the  water,  for  equally  cogent  reasons.  No  violence  to  the 
words  is  done  by  this  construction.  Ohio  terminates  at  the  “  stream  of 
water  flowing  in  its  channel,”  and  Virginia  goes  not  beyond.  She  gives 
the  soil  to  Ohio  when  deserted  by  the  water,  but  in  retaining  the  flow¬ 
ing  stream  she  retains  nothing  which  she  had  granted.  The  grant 
should  be  construed  for  the  benefit  of  both  parties  if  it  can.  If  limited 
as  to  soil  for  strong  reasons,  it  should  not  be  limited  to  the  prejudice  of 
Virginia,  further  than  those  reasons  require.  She  does  not  grant  the 
stream  in  terms  ;  and  no  reasons  of  convenience  or  necessity  compel  us 
to  construe  it  beyond  the  grant  of  the  soil.  She  retains  the  river 
within  its  usual  banks ;  but  does  not  extend  it  to  any  thing  beyond 
the  rise  of  the  water,  or  from  which  it  may  at  any  time  recede. 


56 


[  Doc.  No.  17.  ] 

There  is  a  manifest  convenience  to  Virginia  in  retaining  jurisdiction 
over  the  river.  As  a  practical  question  it  would  be  difficult  to  fix  the 
precise  limits  in  the  stream  of  the  low  water  line,  during  the  flow  of 
high  or  ordinary  water.  For  the  purposes  of  navigation  and  for  the 
service  of  civil  and  criminal  process  it  is  important  that  jurisdiction 
should  be  general  over  the  flow  of  the  stream,  within  its  banks.  If  it 
stop  at  any  line  within  the  stream,  it  might  often  present  questions 
difficult  and  embarrassing,  and  perhaps  not  susceptible  of  solution. 

If  Virginia  has  not  reserved  this  jurisdiction  she  may  be  in  a  worse 
condition  than  Ohio.  For  if  Ohio  has  exclusive  jurisdiction  over  the 
water  to  the  line  of  low  water  by  her  grant,  and  may  take  concurrent 
jurisdiction  over  the  residue  of  the  stream,  without  regard  to  low  wa¬ 
ter,  by  virtue  of  the  compact  with  Kentucky,  as  she  has  granted 
nothing  to  Virginia,  then  the  latter  state  would  have  less  jurisdiction  on 
the  river  than  Ohio.  What  is  the  precise  meaning  of  “  concurrent  ju¬ 
risdiction,”  I  am  not  prepared  to  say.  It  strikes  me  as  equivalent  to 
“ common ,”  and  that  the  “river”  in  connexion  with  “jurisdiction”  in 
the  7th  clause,  is  coextensive  with  the  “river”  in  the  beginning  of  the 
clause,  in  connexion  with  “  use  and  navigation.”  Virginia  evidently 
supposed,  at  the  time  of  her  compact  with  Kentucky  that  she  had  ju¬ 
risdiction  over  the  whole  river.  She  could  not  have  thought  that  there 
was  any  part  of  it  without  her  jurisdiction,  and  that  she  was  making 
herself  unequal  with  the  other  parties. 

There  are  some  analogies  of  the  common  law  which  favour  the  fore¬ 
going  construction  of  the  grant  of  Virginia,  in  severing  the  jurisdiction 
of  the  water  and  the  land,  between  high  and  low  water  (Saville  14. 
Inhabitants  of  Ipswich  vs.  Brown  as  cited  Angel  on  Water  Cour.  Co. 
Litt.  122,  a.  5  Co.  Rep.  Constable’s  case,  Res.  2.)  According  to  the 
case  from  Saville  it  would  seem  the  water  and  soil  of  a  river  may  be 
severed  and  belong  to  different  persons ;  that  the  ownership  may  be 
modified  by  agreement,  as  in  the  case  of  any  other  property.  If  it 
may  be  done  by  express  words,  I  presume  it  may  be  inferred  by  con¬ 
struction  and  from  circumstances,  if  adequate ;  for  it  is  matter  of 
agreement  or  intent.  And  we  have  endeavoured  to  shew  that  the 
words  of  the  grant  admit  of,  and  in  the  intendment  of  the  parties  re¬ 
quire  this  severance.  Constable’s  case,  5  Co.  107.  “  In  this  case  it 

was  resolved  by  the  whole  court  that  the  soil  on  which  the  sea  flows 
aud  ebbs,  to  wit,  between  the  high  water  mark  and  the  low  water 
mark,  may  be  parcel  of  the  manor  of  a  subject.  16  El.  Dy.  326  b. 
acc. — and  so  it  was  adjudged  in  Lacy's  case,  Trim  25  El.  in  this  court. 
And  yet  it  was  resolved  that  whore  the  sea  flows  and  has  plenitudincm 
maris,  the  admiral  shall  have  jurisdiction  of  every  thing  done  on  the 
water,  between  the  high  water  mark  and  low  water  mark,  by  the  ordi¬ 
nary  and  natural  course  of  the  sea;  and  so  it  was  adjudged  in  the  said 
case  of  Lacy,  that  the  felony  committed  on  the  sea  ad plenitud.  maris, 
between  the  high  water  and  the  low  water  mark,  by  the  ordinary  and 
natural  course  of  the  sea,  the  admiral  should  have  jurisdiction  of;  and 
yet  where  the  sea  ebbs,  the  land  may  belong  to  a  subject,  and  every¬ 
thing  done  on  the  land  when  the  sea  is  ebbed  shall  be  tried  at  the  com¬ 
mon  law  for  it  is  then  parcel  of  the  country,  and  infra  corp.  cotJiitat. 


57 


[Doc.  No.  17.] 

and  therewith  agrees,  8  E.  4 — 19  a — so  note  that  below  the  low  water 
mark  the  admiral  has  the  sole  and  absolute  jurisdiction  ;  between  the 
high  water  mark  and  low  water  mark  the  common  law,  and  the  ad¬ 
miral  have  divisum  imperium  interchangeably,  as  is  aforesaid  to  wit, 
one  super  aquam,  and  the  other  super  terrain .” 

The  courts  of  Ohio  would  seem  to  have  admitted  the  construction 
for  which  I  have  been  arguing  :  for  whilst  they  have  admitted  and 
acted  upon  the  case  of  Handley’s  lessee  v.  Anthony  (11  Ohio  Rep. 
138)  as  to  granting  the  soil  to  the  low  water  mark,  they  have  held 
that  Virginia  had  jurisdiction  over  the  whole  river,  that  she  had  never 
granted  it  away,  and  that  the  same  was  concurrent  with  Ohio,  by  vir¬ 
tue  of  the  compact  with  Kentucky.  At  least  such  was  the  decision 
)f  judge  Read  of  Cincinnati  in  the  matter  of  the  slave  Watson  deci- 
led  in  the  supreme  court  of  Ohio  at  Cincinnati,  Feb.  1845.  Reported 
2  West.  Law  Journal  279,  333.  As  the  book  is  perhaps  not  to  be 
found  here  I  may  be  excused  for  making  a  liberal  extract. 

It  was  a  writ  of  habeas  corpus.  The  return  inter  alia  stated,  the 
'espondent  was  returning  from  Arkansas  to  Virginia  with  the  slave  ; 
hat  the  steamer  arrived  in  the  river  opposite  Cincinnati  before  day  on 
he  31st  January  1845,  shortly  after  which  Watson  escaped  ;  that  he 
,lid  not  intend  to  permit  Watson  to  land  on  the  Ohio  shore,  but  to 
ransfer  him  to  another  boat  and  continue  his  journey  without  delay, 
ind  it  was  proved  by  witnesses  that  the  boat  arrived  on  the  morning 
stated  before  day  ;  that  about  daylight  she  was  lying  at  die  wharf,  in 
he  usual  position  of  boats,  her  bow  about  20  or  30  feet  from  shore 
nade  fast,  and  with  her  gang  ways  out  and  fires  damped  down  ;  that 
;he  was  from  25  to  50  feet  within  low  water  mark,  measuring  from 
ler  extreme  outside. 

After  disposing  of  other  parts  of  the  argument,  <£  It  is  claimed”  says 
he  judge,  “  that  the  Ohio  river  is  the  boundary  of  Ohio,  and  that  her 
urisdiction  consequently  extends  to  the  middle  of  the  river  ;  that  Vir¬ 
ginia  and  Kentucky  have  no  right  to  claim  to  low  water  mark  on  the 
lorthwest  side  of  the  river  ;  that  the  deed  of  cession  of  the  northwest 
territory  by  Virginia  could  not  be  referred  to  as  fixing  the  boundary 
ine,  as  she  had  no  right  to  the  territory  ;  that  her  original  charter, 
inferring  upon  her  a  right  to  the  lands,  had  been  annulled  by  the 
:rown ;  and  that  the  French  had  seized  the  territory,  and  that  it  had 
>nly  been  regained  by  the  blood  and  common  treasure  of  all  the  co- 
onies.  It  is  quite  too  late  to  question  the  validity  of  the  deed  of  ces- 
■ion  ;  the  magnanimity  and  patriotism  of  the  Old  Dominion,  the  mo- 
her  of  states,  was  acknowledged  and  the  grant  accepted,  which  estops 
.11  denial  of  the  deed.  The  courts  of  Ohio  have  recognized  it  in  sus- 
aining  the  titles  of  all  the  lands  held  by  grant  from  Virginia  in  the 
nilitary  district. 

“  By  this  deed  the  lands  to  the  northwest  of  the  Ohio  river  were 
:eded.  What  could  have  been  the  object  of  this  phraseology?  Not, 
:ertainly,  to  retain  the  land  in  the  bed  of  the  river  and  the  islands  in 
he  stream.  These  would  be  of  but  trifling  value  compared  with  the 
;reat  gifts  already  made.  It  unquestionably  was  to  secure  the  full  and 
ree  use  of  navigating  the  river,  without  hazarding  any  interference 
8 


58 


[Doc.  No.  17.] 

with  her  slaves  navigating  the  liver,  by  extending  her  jurisdiction 
over  the  water  in  the  bed  of  the  stream.  She  foresaw  that  difficulties 
would  arise  in  respect  to  the  jurisdiction  over  the  river,  by  the  state; 
bordering  on  either  side  ;  and  to  put  all  dispute  at  rest,  in  her  compact 
for  setting  off  Kentucky  as  a  state,  she  declares  that  the  jurisdiction 
over  the  river  should  be  common  or  concurrent  to  the  states  border 
ing  upon  it.  Thus,  for  the  service  of  civil  and  criminal  process  i 
has  been  repeatedly  decided  by  our  courts  that  the  jurisdiction  o 
Ohio  and  Kentucky  was  concurrent  over  the  water  of  the  river,  with 
out  reference  to  high  or  low  water  mark.  True,  it  has  been  decides 
if  a  boat  was  attached  to  either  shore,  for  the  purpose  of  civil  or  crimi 
nal  process,  the  jurisdiction  was  exclusive  in  the  state  to  which  it  wa: 
attached.  Whatever  may  be  the  boundary  line  for  determining  th< 
rights  of  property,  it  is  clear  that  the  state  of  Ohio,  for  other  purposes 
has  only  a  concurrent  jurisdiction  over  the  water  within  the  banks  o 
the  river.  But  for  the  purposes  of  navigation  what  is  the  jurisdictiot 
upon  the  river  ?  The  Ohio  river  is  declared  to  be  the  common  high 
way  of  the  citizens  of  the  U.  States.  It  is  as  free  to  the  people  o 
Kentucky  and  Virginia  as  it  is  to  the  people  of  Ohio.  But  it  is  con 
tended  that  the  people  of  Ohio  have  the  right  to  go  down  to  the  rive 
and  say  to  the  people  of  Virginia  and  Kentucky  and  all  others,  yot 
shall  not  navigate  the  Ohio  river  this  side  of  the  middle  of  the  strean 
with  your  slaves.  If  you  come  this  side  of  the  middle  of  the  strean 
by  accident,  mistake,  or  are  driven  by  the  force  of  winds,  or  ice,  or  b; 
distress,  our  laws  authorize  us  to  take  from  you  your  slaves.  If  yoi 
land  upon  our  shore,  or  are  driven  there  by  any  cause,  your  slaves  ar 
free.  The  effect  of  the  whole  matter  is  to  deny  the  right  to  navigaf 
the  Ohio  with  a  slave.  For  it  is  impossible  oftentimes  to  avoid  cross 
ing  the  middle  line  of  the  river;  sometimes  to  avoid  collisions  witl 
other  boats,  driftwood,  ice, — to  avoid  sandbars  and  ripples  in  lov 
stages  of  water,  and  from  many  other  causes  which  may  arise.  I 
this  view  could  be  sustained  in  law,  it  would  be  lamentable  indeed 
It  would  make  the  Ohio  river  in  truth  what  it  has  been  said  that  it 
name  signifies — the  river  of  strife, — the  war  river, — the  river  o 
blood.  The  people  on  the  one  side  would  attempt  to  free  the  slave  i 
on  the  river  :  the  people  on  the  other  would  regard  it  as  mere  robbe 
ry,  and  would  defend  their  property.  But  such  is  not  the  law.  TheS' 
difficulties  were  foreseen  and  guarded  against  by  the  foresight  am 
wisdom  of  Virginia,  and  she  has,  by  the  means  above  named,  havin: 
dominion  over  the  whole  river  and  the  lands  on  both  sides,  secured  t 
all,  as  far  as  their  interests  were  concerned,  a  common  jurisdiction 
The  jurisdiction  is  over  the  water  itself  and  the  bed  of  the  stream 
and  not  confined  to  fixed  lines.  Thus  a  master  navigating  the  rivet 
whilst  upon  the  water,  is  within  the  jurisdiction  of  Virginia  or  Ken 
tucky,  for  the  purpose  of  retaining  the  right  to  his  slave.  And  if  th 
slave  escape  from  the  boat,  it  is  an  escape  from  the  jurisdiction  of  on 
state  into  another,  within  the  meaning  of  the  constitution  of  the  Uni 
ted  States,  and  act  of  congress. 

“  This  view  is  not  opposed  by  the  fact  that  the  boat  may,  for  th 
purposes  of  the  ordinary  navigation  by  the  river,  be  made  fast  to  th 


59 


[Doc.  No.  17.] 

Ohio  shore.  The  right  to  use  the  shore  for  the  purpose  of  navigation 
is  incident  to  the  right  to  navigate,  and.  does  not  change  the  relation 
of  master  and  slave.” 

Thus  it  appears  that  the  courts  of  Ohio  have  admitted  the  jurisdic¬ 
tion  of  Virginia  over  the  water  of  the  Ohio,  without  regard  to  the  low 
water  line  ;  and  that  they  claim  and  exercise  a  similar  jurisdiction  by 
virtue  of  the  compact  with  Kentucky.  They  construe  the  term 
“river”  in  the  compact,  in  connexion  with  “jurisdiction,”  as  em¬ 
bracing  the  whole  water  of  the  river  within  its  banks.  Of  course 
they  would  extend  this  jurisdiction  upon  the  Virginia  shore  as  far  as  it 
may  be  carried  on  the  Ohio  shore. 

But  though  Virginia  has  thus  jurisdiction  super  aquani ,  it  remains  to 
enquire  what  is  the  extent  or  effect  of  this  jurisdiction,  and  how  it  ap¬ 
plies  to  the  acts  of  the  prisoners.  It  does  not  extend  to  the  soil  be¬ 
tween  high  and  low  water.  For  example,  Virginia  could  not  grant  the 
right  to  mine  for  coal  or  salt  in  it,  or  to  build  permanent  structures 
upon  it.  When  overflowed,  her  rights  are  those  of  the  jus  publicum, 
in  a  navigable  water;  her  jurisdiction  like  that  of  the  admiralty  and 
common  law  between  high  and  low  water.  What  are  all  her  public 
rights  in  the  “  overflow,”  I  will  not  attempt  to  define.  Doubtless  they 
extend  to  navigation,  passing  and  repassing,  and  may  embrace  every 
use  of  the  water  consistent  with  the  ownership  of  the  soil  beneath  in 
Ohio.  16  Peters  421,  per  justice  Thompson. 

The  jurisdiction  may  reach  to  whatever  is  afloat  upon  the  water. 
Yet  is  there  no  exception  to  this,  nor  any  limit  to  the  jurisdiction  short 
of  the  utmost  verge  of  the  current?  Does  it  extend  to  vessels  that 
have  entirely  passed  low  water  and  reached  the  shore  of  the  Ohio,  and 
there  rest  upon  it,  wholly  above  low  water  ?  and  to  the  acts  of  persons 
standing  on  the  shore,  at  the  verge  of  the  water,  but  in  it  ? 

We  have  seen  that  judge  Reed  states,  it  has  been  decided  in  Ohio 
that  if  a  boat  be  attached  to  either  shore,  for  the  purpose  of  civil  and 
criminal  process,  the  jurisdiction  was  exclusive  in  the  state  to  which 
it  was  attached.  He  perhaps  alludes  to  the  case  reported  1  West.  Law 
Journal  ,  wherein  it  was  adjudged  that  an  attachment  by  process 
from  Kentucky,  levied  on  a  boat  lying  at  the  wharf  at  Cincinnati  and 
fastened  to  the  wharf,  was  not  lawful.  The  boat  was  fully  afloat,  and 
lying  with  her  stern  at  least  (if  I  remember  aright)  below  low  water. 

If  the  principle  of  this  decision  be  correct,  it  seems  to  me  to  apply 
a  fortiori  to  the  case  before  us. 

In  examining  it,  we  should  consider  that  we  are  probably  deciding 
the  law  for  the  Virginia  shore,  as  well  as  that  for  the  Ohio.  Whatever 
rights  we  claim  upon  her  shore,  we  have  perhaps  accorded  to  her  upon 
our  own  by  the  grant  of  concurrent  jurisdiction. 

Was  it  well  decided,  and  proper  to  be  admitted  and  followed  by  this 
court  ? 

It  seems  to  me  that  the  principle  is  expedient,  necessary  and  well 
founded. 

Over  the  soil  and  territory  of  a  state,  its  jurisdiction  is  admitted  to 
be  exclusive  ;  and  so  of  every  thing  upon  or  within  it.  A  ship  or  boat 
cannot,  from  its  nature  and  uses,  be  brought  further  within  a  state  than 


60 


[  Doc.  No.  17.  ] 

to  rest  upon  its  shore  or  be  attached  by  wonted  connexions  or  fasten¬ 
ings.  In  a  river  like  the  Ohio,  binding  a  state,  it  cannot  be  otherwise 
brought  within  the  state  at  all.  Ships  and  boats  are  brought  to  the 
wharves  and  landings  of  each  state,  for  trade  and  intercourse ;  and  to 
hold  them,  when  so  brought,  as  not  being  in  the  sole  jurisdiction  of 
the  state,  is  to  affirm  that  they  cannot  be  so  brought  at  all,  and  that 
all  vessels  navigating  the  river,  and  their  crews,  cargoes  and  passen¬ 
gers,  must  be  of  necessity  and  at  all  times,  at  the  shore  or  in  the  river, 
subject  to  the  jurisdiction  of  Virginia,  and  perhaps  to  that  of  Ohio  also, 
under  the  grant  of  concurrent  jurisdiction. 

Jurisdiction  is  sometimes  constructive,  or  beyond  the  actual  territo¬ 
ry,  as  in  the  case  of  a  national  ship  or  ambassador.  So  possession,  as 
of  a  ship,  may  be  constructive ;  and  the  same  may  be  said  of  the  do¬ 
micil.  To  attach  a  boat  to  the  shore,  there  must  be  an  actual  entry 
within  the  territory — a  permission  from  the  sovereign  :  and  so,  to  tread 
upon  its  soil :  and  though  by  controlling  conventions  or  laws  one  may 
have  a  right  to  do  either,  yet  the  limits  and  jurisdiction  of  the  state  re¬ 
main  the  same.  Things  permanently  attached  to  the  freehold  partake 
of  its  dignity  and  attributes,  by  the  common  law.  They  become  a 
part  of  it.  For  the  purposes  of  jurisdiction  may  they  not  be  equally  a 
part,  though  attached  pro  tempore ,  as  long  as  the  connexion  lasts? 
The  dignity  of  the  sovereignty  seems  to  require  it.  It  should  cover 
with  its  aegis  every  thing  that  touches  its  soil,  and  impart  its  protection 
to  all  property  and  persons  that  reach  it.  Like  the  altar  of  refuge  or 
sanctuary,  whoever  lays  hold  of  it  becomes  a  part  of  it,  and  is  safe, 
though  he  stands  without  it. 

The  peace  and  good  order  of  the  state,  the  due  execution  of  its  own 
polity  and  laws,  require  this  construction.  Collision  and  strifes  must 
constantly  arise  from  a  contrary  doctrine.  If  constables  and  sheriffs 
may  levy  attachments  and  executions  upon  property  lying  at  our 
wharves,  and  there  make  arrests  on  mesne  and  final  process,  infinite 
mischiefs  must  ensue.  The  state  is  left  naked  at  her  borders,  and  ob¬ 
noxious  to  every  intrusion. 

States  that  are  washed  by  the  sea,  the  common  highway  of  nations 
(as  Ohio  river  is  of  the  United  States)  enjoy,  for  their  defence  and 
safety,  and  as  a  consequence  of  their  territorial  domain,  the  exclusive 
sovereignty  over  the  ports,  harbours,  gulfs  (within  the  fauces  terrce )  and 
the  sea  coast  for  a  convenient  distance  from  the  land.  This  distance, 
I  believe,  is  the  range  of  cannon  shot,  or  three  miles.  The  nation  in 
possession  of  the  shore  is  at  the  same  time  sovereign  of  the  adjacent 
sea  to  the  above  extent.  It  is  deemed  essential  to  the  safety  and  wel¬ 
fare  of  nations,  and  to  the  due  execution  of  their  revenue  and  other 
laws.  Every  port  is  considered  as  belonging  to  the  state  in  which  it  is 
situate,  and  subject  to  the  ruling  power. 

Is  there  no  analogous  principle  for  a  state  bounded  by  a  river? 

It  seems  to  me  there  should  be,  and  that  it  should  go  as  far  at  the 
least  as  the  decision  of  the  court  in  Ohio  went.  If  the  line  of  com¬ 
mon  jurisdiction  upon  a  river  can  be  passed  at  all,  and  that  of  sole 
jurisdiction  begin,  it  must  be  at  the  point  where  the  shore  of  the  state 
is  reached  in  the  manner  stated. 


61 


[Doc.  No.  17.] 

It  is  no  answer  to  say  that  the  principle  may  be  abused  or  perverted  : 
as  that  one  might  swing  a  boat,  attached  to  a  rope,  out  into  the  stream, 
or  even  near  the  opposite  shore,  to  annoy  or  injure  the  traders  upon  the 
river.  Such  a  case  would  be  extreme,  and  the  connexion  merely 
colourable  and  in  ala  fide,  and  as  such  disregarded. 

The  case  of  Strother  v.  the  City  of  New  York,  reported  19  Johns, 
seems  contra.  But  it  is  to  be  observed  that  this  case  presented  the 
question  as  between  two  counties  within  the  same  state.  The  great 
principle,  as  derived  from  the  eminent  domain  and  as  applicable  to  na¬ 
tions,  was  not  involved.  The  same  reasons  did  not  and  could  not  exist. 
The  difference  between  the  parties  may  warrant  a  different  conclusion. 
It  were  unworthy  to  liken  the  jurisdiction  and  authority  of  a  nation  to 
that  of  a  county.  The  difference  in  the  parties  here  may  warrant  a 
different  conclusion,  as  we  have  seen  it  does  in  the  case  of  grants  to 
individuals  and  nations.  But  even  in  this  case  it  may  be  doubted  how 
the  decision  would  have  been,  had  the  boat  been  resting,  in  any  part 
of  her,  above  the  low  water  in  King’s  county.  The  whole  boat  lay 
below  low  water,  and  without  the  boundary  of  King’s  county. 

Apparently,  the  distinction  before  alluded  to  between  the  admiralty 
and  the  common  law  will  apply  here.  Of  wreck,  the  common  law 
had  jurisdiction  ;  of  flotsam,  the  admiralty.  To  constitute  a  legal 
wreck,  the  goods  must  come  to  land  (quicquid  ad  terrain  venit).  Flot¬ 
sam  is  where  they  continue  floating  on  the  surface  of  the  waves  be¬ 
tween  high  and  low  water.  1  Bl.  Com.  292.  5  Bacon,  title  Prerogative. 
Now  if  a  boat  or  other  thing  be  resting  on  the  soil  or  beach,  the  pro¬ 
perty  of  another;  if  it  be  not  actually  floating  upon  the  surface,  but 
fixed  or  stable  on  the  sands  or  the  shore  between  high  and  low  water, 
like  wreck ;  it  would  seem  the  jurisdiction  of  the  shore  or  of  the  soil 
would  attach  to  it.  This  would  fully  cover  the  case  of  the  canoe  and 
of  the  defendants  under  consideration  ;  though  it  would  leave  the  case 
of  a  boat  wholly  floating  below  or  above  low  water,  and  only  attached 
by  a  cable  or  the  like,  to  the  effect  of  the  arguments  urged  to  shew  it, 
even  then,  constructively  brought  to  the  land  or  shore,  and  a  part 
of  it. 

But  whether  a  boat  so  afloat  and  fastened  be  within  the  exclusive 
jurisdiction  or  not,  it  seems  to  me  that  a  citizen  of  Ohio  standing  upon 
her  soil  above  low  water,  or  a  boat  resting  on  her  shore  above  the  same, 
is  within  the  jurisdiction  of  Ohio,  and  so  the  locus  delicti  without  the 
county  of  Wood  ;  and  that  consequently  there  should  be  judgment  for 
the  prisoners. 

In  approving  the  decision  in  5  Wheaton,  and  yielding  the  soil  and 
jurisdiction  to  low  water  to  Ohio,  with  the  consequences  stated,  and 
attempting  to  reconcile  it  with  the  jurisdiction  of  Virginia  over  the 
water  that  covers  that  soil,  I  may  possibly  have  erred.  They  may  be 
inconsistent  and  not  to  be  reconciled.  I  have  thought  otherwise  ;  and, 
in  this  respect,  have  agreed  with  several  of  my  brethren.  I  must  ad¬ 
mit,  however,  that  I  do  not  feel  the  same  confidence  in  the  latter 
branch  of  this  opinion  as  I  do  in  the  first.  1  yield  to  the  authority, 
justness  and  propriety  of  the  decision  in  5  Wheaton,  and  every  necessary 
consequence  ;  but  have  not  supposed  there  was  any  necessary  conflict 
between  that  decision  and  the  jurisdiction  of  Virginia  as  contended  for. 


62 


[Doc.  No.  17.] 

However,  from  the  difficulty  of  the  whole  subject,  and  the  diversity 
of  views,  I  own  I  feel  great  diffidence  in  all  the  opinions  I  have  ad¬ 
vanced. 

Opinion  of  Duncan,  J.  Judge  Duncan  concurred  with  the  majo¬ 
rity  as  to  so  much  of  the  judgment  of  the  court  as  decided  that  judg¬ 
ment  of  acquittal  in  favour  of  the  prisoners  ought  to  be  pronounced 
upon  the  verdict  of  the  jury, — upon  technical  grounds,  independent 
of  the  question  of  jurisdiction.  And  he  is  not  to  be  understood  as 
committed  to  the  reasoning  of  the  judges  upon  the  question  of  juris¬ 
diction. 

Opinion  of  Scott,  J.  After  the  elaborate  exposition  of  the  sub¬ 
ject  under  consideration  which  has  been  presented  by  the  judges  who 
have  preceded  me,  little  more  is  left  for  me  than  to  say  that  I  dissent 
from  the  judgment  of  the  majority. 

My  opinion  is  that  the  grant  from  Virginia  to  the  United  States  of 
the  territory  northwest  of  the  Ohio  ex  vi  termini  reserved  that  river  to 
Virginia.  And  I  cannot  divest  myself  of  the  notion  that  the  geogra¬ 
phical  object  which  we  call  a  river  consists  of  flowing  water,  a  bed  for 
it  to  pass  over,  and  banks  to  confine  it ;  and  as  the  river,  the  whole  of 
it,  belongs  to  Virginia,  she  owns  every  part  of  it,  water,  bed  and  banks 
to  the  extreme  northwestern  verge. 

It  is  conceded  by  those  who  differ  from  me  in  my  conclusions,  that 
when  Virginia  made  the  cession,  she  owned  the  territory  on  both  sides 
of  the  Ohio,  and  that  she  reserved  the  river  to  herself.  So  that  the 
question  is  narrowed  down  to  “What  is  a  river?”  And  I  repeat  that 
I  can  as  readily  conceive  the  idea  of  an  animal  without  its  essential 
parts,  as  of  a  river  without  banks.  It  must  have  banks  in  the  lowest 
stage  of  the  water.  If  this  be  so,  then  the  question  is  reduced  to  a 
still  narrower  compass ;  to  wit,  What  is  the  limit  to  its  banks?  Is 
that  limit  low  water  mark  ?  If  so,  then  the  Ohio  river  is  out  of  its 
banks  for  nine  months  in  the  year! 

The  length  of  a  river  may  be  assumed  as  a  constant  quantity.  Its 
depth  and  width  (depending  on  the  quantity  of  rain  which  falls  with¬ 
in  the  basin  which  it  drains,  and  that  being  variable)  are  variable  quan¬ 
tities.  Can  it  be  said,  without  a  solecism,  that  a  variable  quantity  ne¬ 
ver  exceeds  its  minimum  ?  And  if  not,  neither  can  it  be  said  that  the 
depth  and  width  of  a  river  are  confined  to  low  water  mark. 

The  common  law  writers  tell  us  that  those  rivers  in  which  the  tide 
ebbs  and  flows  are  called  navigable  rivers,  and  belong,  both  water  and 
soil,  to  the  crown.  This  property  of  the  crown  has  limits.  What  is 
the  limit  to  a  navigable  river  on  its  margin?  High  water  mark.  The 
space  between  that  and  low  water  mark  is  called  the  shore.  The 
shore  belongs  to  the  crown,  because  the  river  belongs  to  the  crown, 
and  the  shore  is  part  of  the  river.  So  say  I  of  the  Ohio  river.  It  be¬ 
longs  to  Virginia;  its  marginal  limit  is  high  water;  and  that  is  the  li¬ 
mit  to  the  domain  of  Virginia. 

It  is  said  that  the  river  means  the  permanent  river,  and  it  loses  the 
character  of  permanence  when  we  pass  low  water  mark.  If  the  term 
river  means  only  that  which  is  within  low  water  mark,  by  what  name 


63 


[Doc.  No.  17.] 

shall  we  call  that  flowing  water  beyond  that  mark,  passing  over  a  bed 
and  confined  by  banks,  which  we  meet  with  for  nine  months  in  the 
year  ? 

Rivers  not  navigable  belong,  both  soil  and  water,  to  individuals. 
The  public  have  an  easement  in  them,  a  right  to  navigate  them  with 
boats:  they  are  therefore  called  public  highways.  The  jus  publicum 
is  confined  to  the  river.  It  does  not  extend  to  one  foot  of  the  land  of 
the  riparian  owner.  This  is  well  settled.  What,  I  ask,  are  the  limits 
of  this  public  highway  ?  Is  the  boatman  a  trespasser,  who  goes  be¬ 
yond  low  water  mark? 

Obstructions  placed  in  such  rivers  are  nuisances,  and  may  be  abated 
and  prosecuted  as  such.  Can  the  riparian  proprietor  place  obstructions 
on  the  shores,  so  as  to  confine  the  navigation  to  the  middle  of  the 
stream  in  stages  of  high  water  ?  And  if  the  word  river  means  the 
permanent  river,  and  it  loses  the  character  of  permanence  after  passing 
low  water  mark,  and  if  the  highway  does  not  go  beyond  the  river, 
what  is  to  prevent  the  riparian  owner  from  making  what  use  he  pleases 
of  the  shores  which  are  no  part  of  the  river  ? 

As  to  the  argument  from  inconvenience,  I  answer,  cujus  est  dare 
ejus  est  disponere.  The  country  on  both  sides  of  the  river,  and  the 
river  itself,  belonged  to  Virginia.  She  made  a  voluntary  donation  of 
the  vast  and  rich  domain  on  its  northwestern  side ;  a  country  capable 
of  sustaining  a  population  more  than  five  times  as  great  as  that  which 
she  retained  ;  a  population  which  might  in  the  course  of  human  events 
become  hostile  to  her:  and  she  can  hardly  be  accused  of  selfishness  or 
undue  precaution,  when,  balancing  the  conveniences  and  inconvenien¬ 
ces  to  herself  and  the  donees,  she  preferred  her  own  safety  and  her 
own  convenience  to  the  convenience  of  those  on  whom  she  had  so  li¬ 
berally  bestowed  her  bounty. 

A  further,  and,  if  well  founded,  a  satisfactory  answer  to  the  argu¬ 
ment  from  inconvenience  is  furnished  by  the  able  and  learned  counsel 
who  appeared  for  the  state  of  Ohio.  I  give  no  opinion  on  that  article 
in  the  compact  between  Virginia  and  Kentucky,  which  it  is  argued 
grants  to  the  states  possessing  the  opposite  shores  concurrent  jurisdic¬ 
tion  over  the  whole  river.  It  presents  a  very  important  question,  and 
one  not  without  its  difficulties.  It  is  not  involved  in  this  case,  and 
therefore  I  give  no  opinion  upon  it.  But  if  the  learned  counsel  be 
right  in  his  definition  of  “jurisdiction;”  if  it  is  “the  right  of  domi¬ 
nion,  of  sovereign  command  over  a  place, — the  right  to  make  laws 
for  it  and  carry  them  into  execution,”  and  if  “  concurrent”  means 
“joint  and  equal,  existing  together  and  operating  on  the  same  objects,” 
(see  printed  argument,  p.  9,)  there  is  an  end  to  all  complaint  on  the 
score  of  inconvenience.  If  Ohio  has  “  sovereign  command”  over  the 
whole  river ;  if  she  can  “  make  laws  for  it  and  enforce  them,”  what 
more  can  she  ask  ? 

The  case  of  Handley’s  lessee  v.  Anthony  is  relied  on  as  an  authority 
against  the  views  which  I  have  endeavoured  to  present.  It  is  with 
unfeigned  diffidence  that  I  should  venture  to  question  any  thing  which 
has  fallen  from  the  eminent  judge  who  delivered  the  opinion  of  the 
court  in  that  case.  No  one  has  formed  a  higher  estimate  of  his  exalt¬ 
ed  qualites  as  a  man,  a  patriot  and  a  judge  than  I  entertain.  But 


64 


[Doc.  No.  17.] 

when  I  am  required  in  my  official  character  to  declare  my  opinion.  I  1 
cannot  do  otherwise  than  obey  the  dictates  of  my  own  judgment,  nor 
can  I  as  a  Virginia  judge  surrender  what  in  my  deliberate  opinion  are 
the  undoubted  rights  of  Virginia,  and  give  up  her  citizens  to  the  penal 
laws  of  another  state  for  enforcing  the  laws  of  Virginia  within  her  i 
limits,  in  deference  even  to  his  high  authority. 

I  feel  no  difficulty  in  concurring  in  the  judgment  given  in  the  case  ' 
of  Handley’s  lessee  v.  Anthony.  I  should  have  no  hesitation  in  de¬ 
ciding  that  a  narrow  gut  or  bayou  some  twenty  paces  wide,  in  which 
•  the  water  of  the  river  sometimes  flows,  separating  from  Indiana  a  large 
body  of  land  which  has  always  been  deemed  and  held  to  be  a  part  of  j 
the  ceded  territory,  is  no  part  of  the  great  river  Ohio  ;  that  the  earth  I 
which  confines  the  water  in  its  occasional  flow  through  this  narrow 
channel  can  in  no  sense  be  called  a  bank  or  banks  of  the  river  Ohio. 
But,  for  the  reasons  already  given,  and  others  more  fully  expressed  by 
some  of  my  brethren,  I  cannot  agree  that  that  great  river  is  confined 
within  the  narrow  limits  of  low  water. 

It  is  to  be  remarked  also  that  the  learned  judge  who  delivered  the 
opinion  in  that  case  shrunk  from  carrying  out  the  position  to ‘which 
I  object  to  all  its  consequences.  The  court  below  had  decided  that 
nothing  can  be  called  an  island  but  that  which  is  surrounded  by  the 
waters  of  the  river  at  all  times  ;  a  definition  which  results,  as  it  seems 
to  me,  from  the  position  that  the  river  is  confined  to  low  water  mark. 

The  supreme  court  refused  to  sanction  this  definition,  and  the  dif-  ! 
ficulty  was  gotten  over  by  saying  that  it  was  made  by  the  court  below  \ 
with  reference  to  the  case  before  it :  that  is,  as  I  understand  it,  as  the 
water  of  the  river  only  occasionally  passed  through  the  little  gut  of 
which  I  have  spoken,  the  land  which  was  thus  only  occasionally  snr- 
rounded  by  the  waters  of  the  river  was  properly  held  not  to  be  an 
island.  It  is  further  to  be  remarked  that  this  and  the  argument  from 
inconvenience  are  quite  as  much  relied  on  a^grounds  for  the  decision, 
as  the  definition  of  a  river. 

With  my  views  of  the  case,  I  cannot  unite  with  those  of  my 
brethren  who  give  to  Virginia  and  Ohio  division  imperium  over  the 
northwestern  shore,  giving  dominion  to  Ohio  when  the  water  recedes, 
and  to  Virginia  when  it  advances.  I  can  find  no  middle  ground  to 
stand  upon.  The  river  belongs  to  Virginia.  She  has  nothing  more 
than  the  river,  and  she  has  the  whole  river.  If  the  shore  is  no  part 
of  it,  the  shore  is  not  hers  ;  if  it  is  a  part  of  the  river,  it  is  hers,  and 
not  the  property  of  another  at  any  time  or  in  any  condition. 

Virginia,  to  wit : 

I,  Nathaniel  P.  Howard,  clerk  of  the  general  court  of  Virginia, 
do  certify  that  the  foregoing  are  copies  of  the  record  sent  to  the  said 
court  from  the  circuit  superior  court  of  Wood  county  in  the  ad¬ 
journed  case  of  the  commonwealth  against  Peter  M.  Garner,  Morde - 
cai  Thomas  and  Crayton  J.  Lorainc  ;  of  the  judgment  of  the  gene¬ 
ral  court  thereupon  ;  and  of  the  opinions  of  the  judges  of  the  general 
court  in  the  case,  so  far  as  the  same  have  yet  been  filed. 

Given  under  my  hand  this  30th  day  of  December  in  the  3rear  1S-46. 

N.  P.  HOWARD. 


lo  '1  fc  %  6  “S' 


*OoP.  V  ^ 


